            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE             FILED
                               JULY 1998 SESSION
                                                           September 16, 1998

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
STATE OF TENNESSEE,                      *    No. 03C01-9709-CC-00385

             Appellee,                   *    Blount County

vs.                                      *    Hon. D. Kelly Thomas, Jr., Judge

BRIAN W. GAINES,                         *    (Delivery of Cocaine)

             Appellant.                  *




For Appellant:                                For Appellee:

Julie A. Martin                               John Knox Walkup
Attorney                                      Attorney General & Reporter
P.O. Box 426
Knoxville, TN 37901-0426                      Ellen H. Pollack
(on appeal)                                   Assistant Attorney General
                                              425 Fifth Avenue North
Stacey D. Nordquist                           Nashville, TN 37243-0493
Assistant District Public Defender
419 High Street                               Philip Morton
Maryville, TN 37804                           Assistant District Attorney General
(at trial)                                    Blount County Courthouse
                                              363 Court Street
                                              Maryville, TN 37804




OPINION FILED:___________________________


AFFIRMED


GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Brian W. Gaines, was convicted of delivery of over 0.5

gram of cocaine, a Class B felony. The trial court sentenced the defendant, who

qualified as a Range I offender, to nine years imprisonment. A fine of $100,000.00

was imposed.



              In this appeal of right, the defendant presents the following issues for

review:

              (I) whether the evidence is sufficient;

              (II) whether a photograph of the defendant was
              improperly admitted into evidence;

              (III) whether the trial court erred by failing to provide a
              missing witness instruction; and

              (IV) whether the trial court erred by misapplying an
              enhancement factor and by denying an alternative
              sentence.


              We affirm the judgment of the trial court.



              In the summer of 1996, Horace Cardin worked as an undercover drug

buyer for Blount County Metro Narcotics. In the early afternoon of July 31, he met

with law enforcement officials to prepare for a purchase of illegal drugs. Officers

searched Cardin and provided him a transmitter and $100.00 in cash. They also

searched his car and installed a video recorder on the dashboard. Cardin then

drove to an area of Alcoa that is well-known for drug activity.



              On South Fulton Street, Cardin encountered three black males

standing in front of a house. The first man, later identified as co-defendant Walter

Waters, waved to Cardin and asked what he wanted. Cardin replied, "I'd like to get

a good hundred if I could," meaning that he wished to buy $100.00 worth of crack

                                            2
cocaine. Waters returned to where the two other males were standing and the one

identified at trial as the defendant went inside the house. The other, later identified

as Mark Wimbley, approached the car and directed Cardin to park off the street.

Within a few minutes, the defendant returned and handed Cardin four packets of

crack cocaine in exchange for the cash.



                 Cardin, who testified that he got a "full view of [the defendant's] face,"

met with officers that afternoon, provided a description of the defendant and turned

over the crack cocaine. He described the defendant as fairly tall and having hair

about one-half inch long and a goatee. Cardin recalled that the defendant wore a

Malcolm X t-shirt. He identified a single photograph of the defendant that afternoon

and later positively identified him at trial. The video tape, which was played for the

jury, included the chin of the individual who delivered the drugs, the top of his head,

and his clothing but did not capture his full facial features.



                 Cardin admitted that he had prior felony convictions for aggravated

assault and bail-jumping. He acknowledged that he received about $50.00 for each

undercover drug buy and that, in return, he was expected to testify when the matter

came to trial.



                 Ron Talbott, a Blount Metro Narcotics Officer, followed Cardin to within

a block of Fulton Street. After the buy, he met with Cardin and collected four plastic

bags containing crack cocaine. When Officer Talbott viewed the video, he

immediately recognized Waters but did not recognize Wimbley. Officer Talbott

thought the third individual looked familiar but could not recall his name. When

Officer Talbott met with Cardin later that day to prepare for another buy, he showed

Cardin photographs of Waters and the defendant. Cardin identified Waters as the


                                              3
first individual to approach him and the defendant as the man who sold him the

crack cocaine.



              Lester Parker, another informant for Blount Metro Narcotics, has

known the defendant and co-defendant Waters since grade school. At trial, Parker

testified that, just after Cardin returned from the drug purchase, Officer Jim Harris

asked him to view the videotape and make an identification. He recognized W aters

as the first man to approach Cardin, the second man as Mark Wimbley, and the

third as the defendant. Parker then drove to Fulton Street where he saw the

defendant, standing by the same house and wearing the same clothing as depicted

in the video. Parker testified that he based his identification on the head, chin, voice

and clothing of the defendant. Officer Talbott, who was present while Parker viewed

the video, testified that Parker recognized the three individuals: "[a]s soon as he

walked in ... and looked at it ... he called them by name."



              Carl Smith of the Tennessee Bureau of Investigation concluded that

the four rocks weighed 0.32 gram, 0.21 gram, 0.23 gram and 0.26 gram,

respectively, for a total weight of 1.0 gram. Each contained cocaine base.



              The defendant presented no proof.



                                            I

              The defendant challenges the sufficiency of the evidence. On appeal,

of course, the state is entitled to the strongest legitimate view of the evidence and all

reasonable inferences which might be drawn therefrom. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be

given their testimony, and the reconciliation of conflicts in the proof are matters


                                           4
entrusted to the jury as trier of fact. Byrge v. State, 575 S.W.2d 292, 295 (Tenn.

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

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

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

beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983);

Tenn. R. App. P. 13(e).



              It is an offense to knowingly deliver a controlled substance. See Tenn.

Code Ann. § 39-17-417(a)(2), (c)(2). A person acts knowingly "when the person is

aware that the conduct is reasonably certain to cause the result." Tenn. Code Ann.

§ 39-11-302(b). "'Deliver' or 'delivery' means the actual, constructive, or attempted

transfer from one person to another of a controlled substance, whether or not there

is an agency relationship." Tenn. Code Ann. § 39-17-402(6). Cocaine is a schedule

II controlled substance. Tenn. Code Ann. § 39-17-408.



              In our view, the jury acted within its prerogative by determining that the

defendant delivered cocaine to Cardin on South Fulton Street. Cardin testified he

was certain that the defendant handed him the cocaine in exchange for his money.

He stated that he had an opportunity to "get a view of his face." Parker also

identified the defendant as the individual in the video tape who delivered the

cocaine.



                                           II

              Next, the defendant contends that the trial court erred by admitting a

photograph of the defendant. Defense counsel argued that the photo should have

been excluded because the state did not comply with the rules of discovery. The

defendant also contends that the trial court erred by failing to grant a mistrial when


                                           5
Officer Talbott testified that he had "pulled a picture" of the defendant, because that

language could lead the jury to believe the defendant had a prior criminal record.



              The defendant's pretrial discovery motion is not in the record.

Discovery is "always triggered by the defendant ...." Rule 16, Tenn. R. Crim. P.,

Advisory Commission Comments. Because there is no discovery motion or order in

the record, this issue must be treated as waived. Tenn. R. App. P. 24(b); State v.

Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Nevertheless, the defendant

would not prevail on the merits because he has not demonstrated prejudice. When

there has been a failure to produce discoverable material within the allotted time,

the trial judge has the discretion to fashion an appropriate remedy, such as a

continuance. Tenn. R. Crim. P. 16(d)(2). Whether the defendant has been

prejudiced by the failure to disclose is always a significant factor. State v. Baker,

751 S.W.2d 154, 160 (Tenn. Crim. App. 1987). Exclusion of the evidence is a

drastic remedy and should not be implemented unless there is no other reasonable

alternative. See, e.g., State v. House, 743 S.W.2d 141, 147 (Tenn. 1987).

Although the trial court admitted the photograph , it ordered the state to remove

"Blount County Sheriff's Department" and the dates. In our view, the trial court

provided a reasonable alternative. Without the designation and date, the

photograph does not necessarily appear to be a mug shot from a prior arrest.



              The admissibility of photographs is governed by Tenn. R. Evid. 403.

See State v. Banks, 564 S.W.2d 947 (Tenn. 1978). "Although relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury ...." Tenn. R. Evid.

403. The evidence must be relevant and its probative value must outweigh any

prejudicial effect. Banks, 564 S.W.2d at 950-51. Whether to admit the photographs


                                           6
is within the discretionary authority of the trial court and will not be reversed absent

a clear showing of an abuse. State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim.

App. 1993). That the photograph might be viewed as a mug shot is not sufficient to

cause an inference of previous criminal activity. State v. Washington, 658 S.W.2d

144 (Tenn. Crim. App. 1983).



              Finally, the decision whether to grant a mistrial is within the trial court's

discretion and will not be disturbed absent an abuse of that discretion. State v.

Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). "Generally a mistrial will

be declared in a criminal case only when there is a 'manifest necessity' requiring

such by the trial judge." Id. at 443. Here, the trial court clearly acted within its

discretionary authority when it ruled that Officer Talbott's statement that he had

"pulled a picture" was not an adequate basis for a mistrial. In the context of the

entire trial, any error was clearly harmless given the totality of the evidence

presented at trial. Tenn. R. App. P. 36(b).



                                            III

              Next, the defendant maintains that the trial court erred by refusing to

instruct the jury that Mark Wimbley was a "missing witness." Wimbley, identified as

the man who directed Cardin to park out of the street, was not charged with any

offense and did not testify at trial. Officer Talbott stated that Wimbley had

disappeared "prior to [the] arrest of several people involved in sales over there." He

testified that the District Attorney had not made any arrangement to refrain from

charging Wimbley in this case and that he did not think W imbley was implicated in

the drug transaction with Cardin. Officer Talbott was unaware that Wimbley had

been named as a state witness on an indictment in an unrelated murder charge.

There was no proof that Wimbley was a cooperating witness for the state.


                                              7
              To justify the missing witness instruction in this instance, the evidence,

strictly construed, must indicate that this witness was peculiarly available to the state

and had knowledge of the material facts at issue; if the state, under these

circumstances, fails to call the witness or give a reasonable explanation for a failure

to do so, the defendant is entitled to have the trial court give instructions that the jury

may infer that had the witness been called, his testimony would have been

detrimental to the state. State v. Wilson, 687 S.W.2d 720 (Tenn. Crim. App. 1984)

(emphasis added). The witness must have knowledge of material facts, a

relationship must exist between the witness and the state that would naturally incline

him to favor the state, and the witness must have been available to the process of

the court. Delk v. State, 590 S.W.2d 435 (Tenn. 1979); State v. Bigbee, 885

S.W.2d 797, 804 (Tenn. 1994).



              Wimbley, an eyewitness to the drug transaction, obviously had

knowledge of material facts. His testimony may or may not have supported the

theory of the state as to the identity of the defendant. We conclude, however, that

Wimbley's being on a possible witness list for the state on an unrelated charge is not

enough, standing alone, to establish a natural inclination on his part to favor the

state. Officer Talbott testified that there was no "deal" with Wimbley and the reason

Wimbley was not charged was because he appeared to be innocent of wrongdoing.

Wimbley did not approach Cardin to inquire what he needed, nor did he participate

in the actual transaction. Officer Talbott explained that Wimbley had disappeared

and could not be located. Wimbley was not, in our view, peculiarly available to the

state and simultaneously unavailable to the defense. The defendant's bare

assertion that "someone for the State knew where [Wimbley] was ...." does not meet

the test.




                                            8
                                           IV

              The defendant contends that the trial court misapplied an

enhancement factor and incorrectly presumed that the defendant was not eligible for

an alternative sentence. We find the enhanced sentence was warranted and affirm

denial of an alternative sentence.



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

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

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

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

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

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

the trial court applies inappropriate factors or otherwise fails to follow the 1989

Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d

116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide

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



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

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

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

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

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

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

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



              At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.


                                            9
Code Ann. § 40-35-210(c). Should the trial court find mitigating and enhancement

factors, it must start at the minimum sentence in the range and enhance the

sentence based upon any applicable enhancement factors, and then reduce the

sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The weight given to each factor is within the trial court's discretion provided

that the record supports its findings and it complies with the 1989 Act. See Ashby,

823 S.W.2d at 169. The trial court should, however, make specific findings on the

record which indicate its application of the sentencing principles. Tenn. Code Ann.

§§ 40-35-209 and -210.



              The purpose of the Community Corrections Act of 1985 was to provide

an alternative means of punishment for "selected, nonviolent felony offenders in

front-end community based alternatives to incarceration." Tenn. Code Ann. §

40-36-103. The Community Corrections sentence provides a desired degree of

flexibility that may be both beneficial to the defendant yet serve legitimate societal

aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). Even in cases where the

defendant meets the minimum requirements of the Community Corrections Act of

1985, the defendant is not necessarily entitled to be sentenced under the Act as a

matter of law or right. State v. Taylor, 744 S.W.2d 919 (Tenn. Crim. App.1987).

The following offenders are eligible for Community Corrections:

              (1) Persons who, without this option, would be
              incarcerated in a correctional institution;

              (2) Persons who are convicted of property-related, or
              drug/alcohol-related felony offenses or other felony
              offenses not involving crimes against the person as
              provided in title 39, chapter 2 [repealed], parts 1-3 and
              5-7 or title 39, chapter 13, parts 1-5;

              (3) Persons who are convicted of nonviolent felony
              offenses;

              (4) Persons who are convicted of felony offenses in
              which the use or possession of a weapon was not

                                           10
              involved;

              (5) Persons who do not demonstrate a present or past
              pattern of behavior indicating violence;

              (6) Persons who do not demonstrate a pattern of
              committing violent offenses; and

              (7) Persons who are sentenced to incarceration or on
              escape at the time of consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a) (emphasis added).



              The defendant, forty-one years old, is married, and has three children

and two step-children. He graduated from Alcoa High School in 1974 and attended

Pellissippi State Community College for six months in 1994. From 1979 until 1993,

when he was laid off, the defendant worked for the Aluminum Company of America

as a tacman. He obtained employment as a tree trimmer in 1996 but was

terminated when arrested and charged in this case.



              While he maintains that he enjoys good physical and mental health, he

has suffered from depression since his arrest and incarceration. He also has a long

history of drug abuse. He was hospitalized in 1982 and 1989 for treatment of drug

addiction. He admitted to using cocaine regularly since 1979. He last used cocaine

several days prior to his arrest.



              At the age of twenty, the defendant was convicted of selling marijuana

and received a one-year suspended sentence. Four years later, he was arrested for

assault and battery but these charges were dismissed. In 1983, he was arrested for

driving while intoxicated and possession of marijuana. While the charge for driving

while intoxicated was dismissed, he was convicted of possession of marijuana.



              At the sentencing hearing, the defendant maintained his innocence

                                          11
and asked for a sentence involving drug treatment. The trial court imposed a Range

I sentence of nine-years. The defendant was fined $100,000.00. The trial court

found that the defendant had a history of criminal behavior and prior criminal

convictions. Tenn. Code Ann. § 40-35-114(1). The trial court also concluded that

the defendant was a leader in the commission of the offense, stating the he was

"evidently in charge ...." Tenn. Code Ann. § 40-35-114 (2). For the factor to apply,

one does not have to be the leader in the offense, but merely a leader in the

commission of the offense. See State v. Angele Franklin, No. 03C01-9402-CR-

00061 (Tenn. Crim. App., at Knoxville, Sept. 27, 1995), app. denied, (Tenn. Mar. 4,

1996). Although there is little evidence in the record to support this factor, the

enhanced sentence is warranted based on the defendant's history of criminal

convictions and behavior. In consequence, we affirm the length of the sentence.



              In our view, the trial court erroneously concluded that the defendant

was ineligible for alternative sentencing. Even with a nine-year sentence, the

defendant meets the threshold qualifications for community corrections. State v.

Reginald Hannum, No. 03C01-9710-CC-00480 (Tenn. Crim. App., at Knoxville, June

26 1998). Convicted of a Class B felony, the defendant, however, is not presumed

to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-

102(6). He has a handful of prior convictions and has admitted to almost twenty

years of regular cocaine use. See Tenn. Code Ann. § 40-35-103(1)(A). Although

he has been through two in-patient drug treatment programs, he has been unable to

manage the addiction. In this regard, he does not appear to be a favorable

candidate for rehabilitation. This leads us to believe that the there is little likelihood

of success in the community corrections program. Tenn. Code Ann. § 40-35-103(5).

On the other hand, he has a consistent work history, including eighteen years of

service with a single employer, and he expresses a desire to obtain further


                                            12
treatment for his drug addiction. While these considerations weigh in favor of an

alternative sentence, the seriousness of the offense and need for deterrence

suggest that he serve his sentence with the Department of Correction. Tenn. Code

Ann. § 40-35-103(1)(B).



             Accordingly, the judgment of the trial court is affirmed.



                                         __________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



________________________________
Joseph M. Tipton, Judge



________________________________
David H. Welles, Judge




                                         13
