             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                           January 15, 2002 Session

       STATE OF TENNESSEE v. JAMES LEE IVORY AND JERMAINE
                        ANTONIO IVORY

                    Direct Appeal from the Criminal Court for Davidson County
                               No. 98-D-2781    Steve Dozier, Judge



                        No. M2000-02145-CCA-R3-CD - Filed January 10, 2003



        Jermaine Antonio and James Lee Ivory, along with their relative David, faced numerous
weapons and narcotics offenses arising out of Davidson County on various dates. After the trial
court severed five counts from one of the indictments, a jury trial was conducted to determine
whether: 1) Jermaine Ivory sold .5 grams or more of a substance containing cocaine on March 16,
1998; 2) Jermaine Ivory sold 26 grams or more of a substance containing cocaine on March 30,
1998; and 3) Jermaine, James, and David Ivory conspired to sell 26 grams or more of a substance
containing cocaine between March 1st and April 30th of 1998. Upon hearing the proof, the jury
convicted Jermaine and James Ivory as charged but acquitted David Ivory. Additionally, James
Ivory later pled guilty to two counts from the above-referenced indictment and two from another. In
doing so, this defendant acknowledged his guilt on two counts of possession with intent to sell over
one half ounce (14.175 grams) of marijuana, one count of felony possession of a firearm,1 and one
count of possession with intent to sell over .5 grams of cocaine. Following separate sentencing
hearings, Jermaine Ivory received an effective sentence of thirty-six years while James Ivory received
an effective sentence of twenty years. Both individuals were also found to be multiple offenders.
Thereafter, Jermaine Ivory unsuccessfully moved for a new trial; however, James Ivory filed no new
trial motion. Both now bring this appeal essentially raising the same issues: (1) whether the State
presented sufficient evidence to support the aforementioned conspiracy convictions; (2) whether the
trial court erred in refusing to suppress evidence; and (3) whether the trial court imposed excessive
sentences. After reviewing the record and applicable authorities, we find that the judgment of the
trial court must be affirmed.


         1
            Though the guilty plea form indicates that this defendant pled guilty to “Ct. 5: poss[.] firearm by convicted
felon [-] a class E felony,” count 6 uses this type of language while count 5 actually charges the defen dan t with
possessing “divers firearms, with the intent to emp loy them in the commission of or escape from an offense.” The
confusion continued in the sentencing hearing as the trial court referenced this offense as “a convicted felon in possession
of a firearm” but proceeded to sentence this defendant on count 5 rather than count 6. Neve rtheless, both of these
offenses arise from Tennesse e Co de A nnotated sec tion 39 -17-1 307 . See Tenn Code Ann. § 39-17-1307. Furthermore,
both are E felonies carrying the sam e punishments. Id.; Tenn. Code Ann. § 40-35-112.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, JJ., joined.

Clark Lee Shaw, Nashville, Tennessee for the appellants, James Ivory and Jermaine Ivory.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General,
Victor S. Johnson, District Attorney General; and Derrick Scretchen, Assistant District Attorney
General for the appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

         After being arrested in an unrelated drug case, Jerry Woodland agreed to become a
confidential informant working with the authorities making controlled purchases of narcotics. On
March 16th and 30th of 1998, Woodland made buys at 2207 Fourteenth Avenue, North. Immediately
prior to both buys, Woodland met with Officer Aaron Thomas, who searched Woodland and the
vehicle Woodland was driving, gave Woodland the money to make the anticipated purchase, and
wired Woodland with a transmitting device. Thomas then followed Woodland to the aforementioned
address and observed him entering the residence. Though Thomas recounted that the area afforded
no inconspicuous place to park for observation during the buys, the officer listened to what
transpired inside the house by means of the transmitter and continued driving through the residential
neighborhood on these occasions. After the purchases were completed, Woodland again met the
officer at an agreed upon location where Woodland surrendered the substances purchased along with
the recorder and transmitter. In addition, the officer searched both Woodland and the vehicle used
by Woodland. Field testing indicated that the substances obtained in these buys contained cocaine.
Further tests conducted at the Tennessee Bureau of Investigation’s crime laboratory revealed that the
two items constituted 21.4 grams and 26.2 grams of a substance containing cocaine.
         Following these purchases, Officer Thomas obtained a search warrant involving 2207
Fourteenth Avenue, North. This warrant was executed on April 6, 1998. As a result of the search,
the authorities recovered three 12 gauge shotguns, three handguns, and an SKS assault rifle from
various bedrooms in the residence; approximately $14,500 dollars from a safe, a cigar box, and two
drawers; and a police scanner from the same bedroom in which the safe had been recovered. In
addition, the police seized latex gloves, which Thomas explained are often used to prevent cocaine
from being absorbed into the skin when handled; hemostats such as are commonly used in smoking
marijuana; a pipe like those typically used to smoke crack cocaine; baking soda, which the informant
detailed was used in making crack cocaine; photographs depicting one or more of the defendants;
a photograph of James Ivory holding a sum of money; two Nashville Electric Service (NES) bills
for the address searched bearing Jermaine Ivory’s name; sets of scales like those used to measure out
quantities of drugs for sale; etc. While testifying, Thomas noted that one of the sets of scales had



                                                -2-
white powder residue on it when seized. During its case in chief, the State also presented proof
regarding the individuals present and actions taken by them during the buys.2
         Of the three defendants only Jermaine Ivory called witnesses to testify on his behalf. First
Timothy “TimTim” Harlan attempted to establish that the gloves, scales, weapons, etc. recovered
had not belonged to Jermaine; that this defendant had not even been present at the residence when
the sales were made; and that an individual named Patrick Cosby had been the person from whom
the informant had purchased narcotics. On cross-examination, Harlan denied speaking with Officer
Thomas about providing information related to this drug enterprise in exchange for leniency on a
theft case that Harlan had pending at the time. In addition to Harlan, Jermaine Ivory’s girlfriend,
Tanya Hughes, testified that she had listened multiple times to the audio-tape of the drug
transactions. According to this witness she could tell from the conversations that drugs were being
purchased. Nevertheless, while she stated that she had frequently heard Patrick “Strick” Cosby’s
voice on the recording, she alleged that she could not hear Jermaine Ivory’s at any point. Hughes
also sought to establish that Jermaine Ivory neither lived at nor frequented 2207 Fourteenth Avenue,
North. Furthermore, this witness indicated that the money held by James Ivory in one of the seized
photographs may have been money which he won playing the numbers.
         Finally, the State re-called Officer Thomas in rebuttal. Thomas testified about exchanges he
had with Harlan’s attorney regarding the possibility of Harlan’s avoiding indictment in exchange for
providing information about drug activity. Thomas added that he had actually met with Harlan at
the jail concerning such an arrangement but stated that ultimately no deal was completed.
         Upon hearing this and additional proof, the jury convicted Jermaine and James Ivory as
charged concerning the March and April of 1998 offenses. As aforementioned, James Ivory also
subsequently pled guilty to additional charges. These defendants now appeal the trial court’s denial
of their motions to suppress, along with their conspiracy convictions and their sentences.


                                                      Sufficiency

        Both defendants assert that the proof is insufficient to support their convictions for
conspiracy to sell 26 grams or more of cocaine. When a defendant challenges the sufficiency of the
evidence, this Court is obliged to review that claim according to certain well-settled principles. A
verdict of guilty, rendered by a jury and “approved by the trial judge, accredits the testimony of the”
State’s witnesses and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875
S.W.2d 253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although
the accused is originally cloaked with a presumption of innocence, the jury verdict of guilty removes
this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the
insufficiency of the convicting evidence. Id. The relevant question the reviewing court must answer
is whether any rational trier of fact could have found the accused guilty of every element of the
offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making
this decision, we are to accord the State “the strongest legitimate view of the evidence as well as all

       2
           Further detail about this proof will be set forth during the Court’s analysis of the sufficiency issue. See infra.

                                                            -3-
reasonable and legitimate inferences that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914.
As such, this Court is precluded from re-weighing or reconsidering the evidence in evaluating the
convicting proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our
own “inferences for those drawn by the trier of fact from circumstantial evidence.” Id. at 779. While
the trier of fact must be able to “determine from the proof that all other reasonable theories except
that of guilt are excluded,” a criminal offense may be established exclusively by circumstantial
evidence. State v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995); see also, e.g., State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987).
         In order to sustain a conspiracy conviction, Tennessee Code Annotated section 39-12-103(a)
requires the State to prove that:
                 two (2) or more people, each having the culpable mental state
               required for the offense which is the object of the conspiracy and each
               acting for the purpose of promoting or facilitating commission of an
               offense, agree that one (1) or more of them will engage in conduct
               which constitutes such offense.

Tenn. Code Ann. § 39-12-103(a). The remaining pertinent portion of this statute provides that “[n]o
person may be convicted of conspiracy to commit an offense unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by the person or by another with whom the
person conspired.” Tenn. Code Ann. § 39-12-103(d).
         The proof of Jermaine Ivory’s involvement in the sale of cocaine is overwhelming and need
not be reiterated here. A fortiori, if the proof is sufficient to establish that James Ivory conspired
with Jermaine to engage in the sales, the proof is sufficient to establish the guilt of both defendants
on the conspiracy count in the indictment.
         James Ivory alleges that there is insufficient proof to establish that he acted in concert with
Jermaine or that there was a meeting of the minds between them. We must respectfully disagree.
         Although the informant, Mr. Woodland, was less than a model of clarity on this point, he did
state at various times in his testimony that James Ivory had been present at both controlled buys of
cocaine. On the second buy James accompanied Jermaine to the kitchen where crack was being
prepared. James Ivory was present at the residence when the search occurred and various items used
in the sale and/or use of narcotics were seized. Many of these items were seized from the common
areas of the residence. Police also recovered a photograph of the apparently unemployed James
Ivory holding up an unknown quantity of cash. While we acknowledge that the proof of James
Ivory’s involvement in a conspiracy with Jermaine is not exactly overwhelming, we believe it is
sufficient to convince a rational trier of fact that in fact James was engaged in such a conspiracy.
This issue therefore affords neither defendant a basis for relief on appeal.


                      Suppression of Items Seized Pursuant to the Search

        The defendants further claim that the trial court erred in failing to suppress the evidence
seized in the April 6, 1998 search executed at 2207 Fourteenth Avenue, North. James Ivory also

                                                  -4-
avers that the trial court erred in not suppressing the fruits of the November 19, 1998 search. Though
two searches are involved, the alleged basis for relief remains the same; the defendants aver that
suppression is mandated because the police did not comply with the “knock and announce”
procedure prior to entering the residence and that no exigent circumstances existed justifying failure
to do so.
         Before delving into an analysis of these searches, we must address the matter of whether
James Ivory has waived his challenges to them. The State correctly observes that James Ivory never
filed a new trial motion raising claims regarding the April search nor did he reserve any issue
regarding the November search as a certified question of law when he pled guilty to the offenses
surrounding the November search.
         Concerning the first of these assertions, Tennessee Rule of Appellate Procedure 3(e) clearly
provides
         that in all cases tried by a jury, no issue presented for review shall be predicated upon
         error in the admission or exclusion of evidence, jury instructions granted or refused,
         misconduct of jurors, parties or counsel, or other action committed or occurring
         during the trial of the case, or other ground upon which a new trial is sought, unless
         the same was specifically stated in a motion for a new trial; otherwise such issues
         will be treated as waived.
Tenn. R. App. P. 3(e) (emphasis added). This defendant has, therefore, waived this issue. See, e.g.,
State v. Alvin B. Tate, No. W1999-012240-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 473, at *5-
*6 (Tenn. Crim. App. at Jackson, June 16, 2000).
          We next address the question of whether James Ivory sufficiently preserved his right to
appeal the November 19th search. Since the convictions arising from this search arose out of guilty
pleas, we note that Tennessee Rule of Criminal Procedure 37, in pertinent part, provides:
       An appeal lies from any order or judgment in a criminal proceeding where the law
       provides for such appeal, and from any judgment of conviction: . . .
       (2) upon a plea of guilty or nolo contendere if:
       (i) the defendant entered into a plea agreement under Rule 11(e) but explicitly
       reserved with the consent of the state and of the court the right to appeal a certified
       question of law that is dispositive of the case, and the following requirements are
       met:
       (A) the judgment of conviction, or other document to which such judgment refers
       that is filed before the notice of appeal, must contain a statement of the certified
       question of law reserved by defendant for appellate review;
       (B) the question of law must be stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;
       (C) the judgment or document must reflect that the certified question was expressly
       reserved with the consent of the state and the trial judge; and
       (D) the judgment or document must reflect that the defendant, the state, and the trial
       judge are of the opinion that the certified question is dispositive of the case; or
       (ii) the defendant seeks review of the sentence set and there was no plea agreement
       under Rule 11(e); or
       (iii) the error(s) complained of were not waived as a matter of law by the plea of

                                                 -5-
        guilty or nolo contendere, or otherwise waived, and if such errors are apparent from
        the record of the proceedings already had; or
        (iv) the defendant explicitly reserved with the consent of the court the right to appeal
        a certified question of law that is dispositive of the case.


Tenn. R. Crim. P. 37(b). Although available to a defendant to challenge a search following a guilty
plea, James Ivory failed to comply with this procedure. See, e.g., State v. Simpson, 968 S.W.2d 776,
778 (Tenn. 1998); State v. Evelyn C. Bostic, M2000-03011-CCA-R3-CD, 2002 Tenn. Crim. App.
LEXIS 180, at *2-*3 (Tenn. Crim. App. at Nashville, Mar. 8, 2002). He has, therefore, waived his
challenge to the November search.
        Based upon this finding, we need only address Jermaine Ivory’s properly preserved
contention regarding an alleged violation of the knock and announce provision during the April 6,
1998 search. In considering the matter, we recognize that we are to uphold a trial court’s factual
findings from a suppression hearing “unless the evidence preponderates otherwise.” State v.
Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). Therefore, issues regarding the “credibility of witness,
the weight and value of the evidence, and the resolution of conflicts in the evidence are matters
entrusted to the trial judge,” and this Court is to afford the prevailing party “‘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. (quoting State v. Odom, 928 S.W.2d 18, 23
(Tenn. 2001)). Nevertheless, this Court “is not bound by the trial court’s conclusions of law.”
Randolph, 74 S.W.3d at 33.
       Turning more specifically to the concern at hand, Tennessee Rule of Criminal Procedure
41(e) provides:
        If after notice of authority and purpose a peace officer is not granted admittance, or
        in the absence of anyone with authority to grant admittance, a peace officer with a
        search warrant may break open any door or window of a building or vehicle, or any
        part thereof, described to be searched in the warrant to the extent that it is reasonably
        necessary to execute the warrant and does not unnecessarily damage the property.
Tenn. R. Crim. P. 41(e); see also State v. Fletcher, 789 S.W.2d 565, 566 (Tenn. Crim. App. 1990).
This knock and announce rule is not merely a statutory or court rule; it is part of the requirement
under the Fourth Amendment to the United States Constitution that searches be reasonable. Wilson
v. Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 1916, 131 L. Ed. 2d 976 (1995). The requirement
mandates that officers (a) identify themselves as law enforcement officials and (b) explain the
purpose of their presence, i.e. the execution of a search warrant. W. LaFave, Search and Seizure, §
4.8(c) at 606-07 (3d ed. 1996). If the officer is not admitted to the residence after giving proper
notice, the officer is authorized to “break open any door or window of a building or vehicle, or any
part thereof, . . . to the extent that it is reasonably necessary to execute the warrant and does not
unnecessarily damage the property.” Tenn. R. Crim. P. 41(e). A threefold purpose exists for the
knock and announce rule:
        First, it provides protection from violence, assuring the safety and security of both
        the occupants and the entering officers. . . . Second, it protects “the precious interest

                                                   -6-
       of privacy summed up in the ancient adage that a man’s house is his castle”. . . .
       Finally, it protects against the needless destruction of private property.
U.S. v. Moreno, 701 F.2d 815, 817 (9th Cir. 1983), rev’d on other grounds, United States v. Moreno,
469 U.S. 913, 105 S. Ct. 286, 83 L. Ed. 2d 223 (1984); see also, State v. Lee, 836 S.W.2d 126, 128
(Tenn. Crim. App. 1991) (citing this quotation in explaining the rationale for the knock and
announce rule).
        “Absent exigent circumstances, officers must ‘wait a reasonable period of time before [they]
may break and enter into the premises to be searched.” Lee, 836 S.W.2d at 128 (footnote omitted)
(quoting State v. Carufel, 314 A.2d 144, 146 (R.I. 1974)). In State v. Fletcher, this Court indicated
that “sounds indicative of flight or destruction of evidence -- running, scuffling, or toilet flushing”
could excuse compliance with the knock and announce rule. Fletcher, 789 S.W.2d at 566.
        In denying the defendants’ motion regarding the April 6, 1998 search, the trial court found
that viewing the testimony as a whole, particularly that of Officer Thomas, the authorities complied
with the knock and announce provision. En route to this finding, the court acknowledged the
following exchange highlighted by the defense: Jermaine Ivory’s defense counsel: “[T]here was no
waiting for anyone to come to the door, was there?” Thomas: “No sir, the door was open.”
However, reviewing the entirety of this witness’ testimony, the trial court further stated:
       Prior to this question, Officer Thomas testified that he could see defendant David
       Ivory standing in the hallway of the residence. He also testified that he waited at least
       five (5) seconds before entering the residence and answered “no” to counsel’s
       question asking whether he entered the residence simultaneous to knocking. When
       Officer Thomas was recalled to the witness stand on August 20, 1999, defense
       counsel specifically asked the officer if there was enough time for anyone to come
       from the back of the house in order to answer the front door. The officer answered[,]
       “Yes, they could have.” Defense counsel then replied[,] “They would have had to
       run, wouldn’t they?” The officer answered[,] “The house is not that large.” Defense
       counsel again asked the officer[,] “. . . you didn’t wait any time for anybody to come.
       Is that right?” The officer answered[,] “I gave them a few seconds. Yes sir, I did.”


       The trial court then found as follows:
       Clearly the factors that this Court must consider indicate that Officer Thomas was in
       compliance with Rule 41(e). The officer’s testimony, which the Court credits,
       indicated that he took the following actions in executing the warrant: (1) knocked on
       the metal storm door of the premises; (2) announced “police, search warrant”; and
       (3) waited at least five seconds before entering the defendants’ residence. Further, he
       stated that five (5) seconds was a reasonable time for the defendants to have
       answered the door of the residence, considering the small size of the residence. Also
       relevant in the analysis was Officer Thomas’s testimony that he could see defendant
       David Ivory through the front door standing in the hallway of the residence. This
       suggests that the five (5) second wait before entering was more than reasonable. One


                                                 -7-
         further factor which cannot be ignored concerns the presence of drugs believed to be
         in the apartment.
Additionally, the trial court found problems with the proof presented by the defense. For example,
the court raised credibility concerns about the two neighbors testifying regarding this matter and
found that these individuals likely did not have adequate lines of sight to determine whether the
officers had complied with this procedure. Furthermore, the trial court stated that the proof supported
the conclusion that James and David Ivory “were apparently asleep” when Officer Thomas knocked
and announced.
        From our review this is an extremely close case.3 Primarily, we are concerned about the
alleged passage of only five seconds between Officer Thomas’ knocking and announcing and his
opening the unlocked door himself to enter. Thomas’ testimony that David Ivory was “coming up
the hallway at th[is] time” further complicates the matter.
        Had Thomas entered simultaneously with his knocking and announcing, he would have failed
to comply with this provision, and the presence of exigent circumstances would have been necessary
to excuse this failure.4 See Lee, 836 S.W.2d at 129. However, even though the officer’s estimated
five second wait is admittedly a short period of time, the trial court found it to be reasonable based
in part upon the size of the house and David Ivory’s presence in the hallway. The combination of
a photograph of the residence’s exterior and a diagram of its interior, both made exhibits to the trial,
lend credence to this conclusion. From these exhibits it appears that the officer could only see a small
portion of the hallway from the area outside the front door because of the direction in which the
hallway runs. Moreover, neither James nor David Ivory claim that a lack of time prevented them
from voluntarily admitting the officers since both denied hearing Thomas knock and announce.
Under all of these circumstances and affording the State the strongest legitimate view of the evidence
presented, we cannot say that this period of time constituted an unreasonable delay prior to Thomas’
opening the unlocked door and entering. We, therefore, conclude that this issue lacks merit.


                                                        Sentencing
       Finally, both Jermaine and James Ivory assert that they received excessive sentences. James
Ivory avers that since the trial court found no enhancement factors appropriate, the court
inappropriately sentenced him to the maximum for each conviction. In addition, Jermaine Ivory
contends that his maximum sentences for each conviction are not validly supported by the record.



         3
           A minor discrepancy involves finding tha t Jame s Ivory w as asleep. T hough the rec ord seems to indicate that
this defendant was in bed when Officer Thomas knocked, there is no mention of his being asleep during this daytime
search. W hile this conflicts with the trial court’s find ing, it is not a crucial conflict. Since both defendants denied hearing
Thomas knock and announce, neither claim that they were attempting to respond by opening the door but were not given
time to do so.

         4
           The defense claims that the trial court erred “in refusing to suppress evidence resulting from the execution
of a search warrant by the police without knocking and announcing based on exigent circumstances.” Nevertheless, as
above-noted, we observe that the trial court found T homas in compliance with the knock and announce provision.

                                                              -8-
        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the 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.” State v. Ashby, 823 S.W.2d 166, 169
(Tenn. 1991). In conducting our review, we must consider a defendant’s potential for rehabilitation,
the trial and sentencing hearing evidence, the pre-sentence report, the sentencing principles, the
sentencing alternative arguments, the nature and character of the offense, the enhancing and
mitigating factors, and the individual defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5)-
210(b); Ashby, 823 S.W.2d at 169. We are also to recognize that the defendant bears the burden of
demonstrating that the sentence is improper. Ashby, 823 S.W.2d at 169.
        Furthermore, under Tennessee Code Annotated section 40-35-210, the presumptive sentence
for a Class B, C, D or E felony is the minimum within the applicable range unless enhancement or
mitigating factors are present. Tenn. Code Ann. § 40-35-210(c). If there are enhancement or
mitigating factors, the court must start at the presumptive sentence, enhance the sentence as
appropriate for the enhancement factors, and then reduce the sentence in the range as appropriate for
the mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight to be given each factor is left
to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
Nevertheless, the trial court must make on the record specific findings of fact supporting the
sentence. Tenn. Code Ann. § 40-35-209(c). The record should also include any enhancement or
mitigating factors applied by the trial court. Tenn. Code Ann. § 40-35-210(f).
        In the instant case James Ivory contests the sentences he received for two counts of E felony
possession of a schedule VI substance (marijuana) for resale; one count of E felony possession of
weapons, one count of B felony conspiracy to sell 26 grams or more of cocaine, and one count of B
felony possession of a schedule II controlled substance (cocaine) for resale. He does not, however,
contest his status as a multiple offender. Therefore, the applicable range for the E felonies in this
situation is “not less that two (2) nor more than four (4) years” while the range for the B felonies is
“not less than twelve (12) nor more than twenty (20) years.” Tenn. Code Ann. § 40-35-112(b)(2),
(5).
        As aforementioned, this defendant asserts that the trial court found no enhancement factors
applicable to his convictions yet still sentenced him to the maximum for each of these offenses. To
support this claim, he states that “the Trial Court affirmatively found that no enhancement factors,
as set forth under Tennessee law, were applicable in this case.” After reviewing the transcript, we
agree that the trial judge did state, “[A]nd for the record, I do not – I’ve looked at all the
enhancement factors and do not find that any of those apply.”
         However, even a cursory reading of the transcript reveals that the trial court likely intended
to reference mitigating rather than enhancement factors in this statement since the court had made
a detailed finding regarding the applicability of three enhancement factors only moments earlier.
More specifically, the trial court found that James Ivory “has a previous history of criminal
behavior[,] . . . has a previous history of unwillingness to comply with conditions of a sentence[,
and] . . . possessed a firearm during the commission of these offenses.” See Tenn. Code Ann. § 40-

                                                 -9-
35-114(1), (8), (9) (Supp. 2001).5 The court also concluded that each of these factors applied to all
four of the convictions.
        From our review of the record, we agree that two of these are applicable to the convictions
at issue here. The pre-sentence report reflects that James Ivory previously had been convicted of
resisting arrest, evading arrest, and, on two occasions, criminal trespass. These convictions were in
addition to those for robbery and C felony theft, which were used to support this defendant’s
classification as a multiple offender. The trial court, thus, correctly concluded that enhancement
factor (1) (regarding prior criminal convictions/behavior) applied to each of the convictions for
which he faced sentencing in this case. See Tenn. Code Ann. §40-35-114(1) (Supp. 2001).
Furthermore, the pre-sentence report reflects that the defendant’s parole on the latter two felony
convictions was revoked in December of 1994. Enhancement factor (8) (regarding a prior
unwillingness to abide by conditions of release into the community), therefore, also applied to the
four convictions on which the trial court sentenced James Ivory. See Tenn. Code Ann. § 40-35-
114(8) (Supp. 2001).
        As above-noted, the trial court also found enhancement factor (9) (regarding possession of
a firearm while committing the crime) applicable to each of the four convictions. See Tenn. Code
Ann. § 40-35-114(9) (Supp. 2001). We cannot agree with this finding as it concerns the weapons
possession offense. Enhancement factors forming essential elements of an offense may not to be
used to enhance that offense. State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994); State v. Spratt, 31
S.W.3d 587, 608 (Tenn. Crim. App. 2000); see also Tenn. Code Ann. § 40-35-114. It follows that
this factor is not applicable to enhance the sentence on this weapon conviction. However, the
remaining applicable enhancement factors justify the imposition of a four-year sentence on the
weapons offense. Factor (9) is appropriate for use with the remaining convictions since the first
search of this home which served as a base for distributing narcotics resulted in the recovery of
numerous weapons while yet another weapon was recovered in the second search. See State v.
Robert L. O’Neal, No. 01C01-9601-CC-00438, 1997 Tenn. Crim. App. LEXIS 1338, at *8 (Tenn.
Crim. App. at Nashville, Dec. 30, 1997); State v. Bruce Fidel Woodard, No. 01-C-01-9108-CR-
00251, 1992 Tenn. Crim. App. LEXIS 82, at *2-*3, *5-*6 (Tenn. Crim. App. at Nashville, Jan. 31,
1992); State v. Milton Jerome Johnson, No. 139, 1991 Tenn. Crim. App. LEXIS 198, at *2, *7-*8
(Tenn. Crim. App. at Jackson, Mar. 20, 1991).
        As we noted previously, it appears that the trial court attempted to state that it found no
mitigating factors applicable. Nevertheless, since it technically did not do so, we have reviewed these
factors and find none applicable.6 See Tenn. Code Ann. § 40-35-113. We therefore affirm James
Ivory’s sentences.




         5
            A 200 2 am endment to this statute adde d a new (1) e nhancement facto r, renum bering the already ex isting
factors (1) through (22) as (2) thro ugh (2 3). See Tenn. Co de A nn. § 4 0-35 -114 “Amendments.” For the purposes of this
opinion, we will use the p revious designations applicab le at the time of sentencing.

         6
           We further note that within his brief this defendant did not contend that any particular mitigating factor applied
to his convictions.

                                                           -10-
        As noted above, Jermaine Ivory also asserts that he received an excessive sentence. More
specifically, this defendant appears to contend that the trial court did not clearly apply enhancement
factors to allow this Court to adequately review the sentences imposed and that the trial court
“contruct[ed] its own facts in determining” his sentence.
         We first examine this defendant’s alleged confusion concerning the trial court’s application
of the possession of a weapon enhancement factor to “Count Three” despite the fact that the record
does not support the existence of a conviction on this count. In reviewing this issue, we find that the
trial court was referring to this defendant’s conspiracy conviction, though this offense was charged
in count 8 of the relevant indictment. Earlier in the proceeding and pursuant to a motion by the
defense, the trial court had severed counts 3 through 7 of this indictment for trial at another time.
Thus, when counts 1, 2, and 8 proceeded to trial, the lower court began referring to count 8 as count
3 in the jury’s presence. Such references may be seen in the jury instructions given by the trial court.
Furthermore, in announcing its findings relative to this charge, the trial court stated, “And, in terms
of enhancing factors, the Court finds three, one of which would apply only to Count Three, but the
– that one being the possession of firearms during the commission of the felony – I think can be
applied to Count Three, in terms of the conspiracy.” Combining what we consider to be the meaning
of this statement with the trial court’s aforementioned references to the conspiracy charge as count
3, we respectfully disagree with this defendant’s argument that the record fails to indicate to which
offense this factor was applied.
        We next consider his allegation “that the Court . . . construct[ed] its own facts in
determining” the appropriate sentence. This defendant particularly complains that the trial court
inferred that the two drug sales involved in this case were not the only two with which he had been
involved. As a matter of fact, the trial court did state as follows:
        And I agree with the State, in terms of the proof that the Court’s heard about Mr.
        Ivory’s livelihood during the three years – approximately three years he was out on
        parole; that is, that they involved the sale of drugs. . . . [I]t’s also clear to the Court
        that Mr. Ivory was involved in the sales of cocaine. And I don’t think its stretching
        the facts of this case very much to – for the Court to conclude that these weren’t Mr.
        Ivory’s only two drug sales. With the money, the gloves, everything that was found
        there in the house, it’s obvious that Mr. Ivory, with other individuals – he being the
        main one – made his livelihood selling cocaine.
       The record reflects that such seems to have come to the trial court’s mind while discussing
enhancement factor 13(B), i. e. that the defendant was on parole at the time of the commission of
these offenses. See Tenn. Code Ann. § 40-35-114 (13)(B) (Supp. 2001). We find that these
comments, rather than relating to any enhancement factor, concern the trial court’s subsequent
finding that this defendant is “a professional criminal and would qualify as that for consecutive
sentencing purposes.” See Tenn. Code Ann. § 40-35-115(b).
        Additionally, Jermaine Ivory contests his sentence based upon the trial court’s alleged lack
of clarity concerning possible consideration of arrests not leading to convictions. Within his brief
this defendant states, “[t]he Court also considered, ‘other arrests that did not lead to convictions’
noting ‘and I cannot consider; but I think that factor, although receiving minimal weight, can be
applied.’”

                                                   -11-
        Again, to place the comments in context, the reviewer must look at the trial court’s
statements preceding and following those highlighted by the defense. Thus, in greater detail the trial
court stated,
        In terms of the third factor that would apply to all, that is, that he has been convicted
        of delinquent acts as a juvenile, which would be a felony as an adult. The only one
        I can consider that, according to the presentence report, was actually a conviction and
        a felony – there were several misdemeanor and drug and violation of probation
        convictions – but also a felony possession for resale conviction as a juvenile. There
        were other arrests that did not lead to convictions, and I cannot consider; but I think
        that factor, although receiving minimal weight, can be applied.
         While it is true that the trial court might have more clearly stated its finding in this regard,
we remain convinced that the court justifiably applied enhancement factor (20), that “[t]he defendant
was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a
felony if committed by an adult.” See Tenn. Code Ann. § 40-35-114(20) (Supp. 2001). Based upon
the above, we conclude that the trial court’s intent in making the statement referenced by the defense
was to note that certain of this defendant’s arrests could not be considered for enhancement purposes.
However, the trial court also correctly indicated that the defendant had been adjudicated delinquent
based upon a possession of a controlled substance for resale offense and that this adjudication would
support the application of enhancement factor (20). Contrary to this defendant’s assertion, the trial
court clearly indicated that it applied this factor to all three convictions (though affording the factor
little comparative weight). For these reasons we find the trial court’s actions in this regard were
appropriate, and we conclude that this portion of the defendant’s contention lacks merit.
         Briefly, we observe that this defendant faced sentencing as an uncontested multiple offender
for three B felonies. His applicable range of punishment, therefore, fell between twelve and twenty
years for each of these convictions. See Tenn. Code Ann. § 40-35-112(b)(2). As noted previously,
the trial court sentenced the defendant to eighteen years on the possession for resale offenses and to
twenty years on the conspiracy offense. In handing down these sentences, the trial court observed
that the defense did not argue the applicability of any mitigating factors, and the court specifically
found that none applied to any of the three convictions. Furthermore, as referenced above, the court
found enhancement factors (13)(B) (dealing with the defendant’s commission of the offense while
on parole for a prior felony conviction) and (20) (dealing with the defendant’s prior adjudication as
“hav[ing] committed a delinquent act or acts as a juvenile that would constitute a felony is
committed by an adult”) appropriate for use with the possession for resale convictions. See Tenn.
Code Ann. §40-35-114(13)(B), (20) (Supp. 2001). In addition, the trial court concluded that these
factors applied to the conspiracy conviction and that factor (9) (dealing with possessing a weapon
during the commission of the offense) was also appropriate for use in enhancing the sentence for this
conviction. See Tenn. Code Ann. §40-35-114(9) (Supp. 2001). The record further indicates that the
trial court placed little emphasis on factor (20) but afforded factor (13)(B) the most weight. We find




                                                  -12-
that the record supports the imposition of each of these factors.7 Based upon this and the previously
stated reasons, we conclude that this issue as a whole lacks merit and that this defendant is not
entitled to sentencing relief.
                                                    Conclusion
         For the foregoing reasons, the judgments of conviction and the sentences of both defendants

are AFFIRMED.


                                                                ___________________________________
                                                                JERRY L. SMITH, JUDGE




         7
           At the time of the offense, this defendant was on parole for aggravated robbery and attempted second degree
murder. In addition, the presentence report indicates that this defendant had been adjudicated delinquent for possessing
a controlled substance for resale. Finally, numerous weapons were recovered from the home seemingly serving as the
physical center for the conspiracy. The electricity at this residence was in this defendant’s name; this defendant made
the two drug sales from within this location; etc.

                                                         -13-
