         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs February 14, 2001

                    STATE OF TENNESSEE v. KELLY LAYNE

                      Appeal from the Circuit Court for Marion County
                          No. 3960    Thomas A. Graham, Judge



                     No. M1998-00746-CCA-R3-CD - Filed July 11, 2001


The defendant, Kelly Layne, appeals his conviction for selling a counterfeit controlled substance, a
Class E felony, for which he was sentenced to one year, eight months, all but ninety days to be
served in a community corrections program, and fined $2,500. He contends that venue was not
proven and that his sentence is excessive. We affirm the conviction and sentence, except we reduce
the fine to $1,500.

    Tenn. R. App. R. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
                                        Modified

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN, J., joined.

Phillip A. Condra, District Public Defender, for the appellant, Kelly Layne.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Steven H. Strain, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The defendant was originally charged and convicted of both the sale and the delivery of a
counterfeit controlled substance, but the trial court merged the delivery count into the sale count.
The evidence reflects that two women cooperating with law enforcement met the defendant at the
Hillbilly Club in Grundy County. They asked him about drugs and he replied that he had some, but
at another location. He said that he would be back in twenty minutes and would have something for
them. Later, the women met the defendant and Teddy Lowe, a co-defendant, at Lowe’s residence
in Monteagle, Marion County. At that point, money and a substance, purportedly methamphetamine,
were exchanged between the defendant and one of the women. Analysis showed that the substance
did not contain a controlled substance.
                                             I. VENUE

        The defendant’s claim regarding venue raises the question of what constitutes a sale. The
defendant asserts that the sale occurred at the Hillbilly Club. He argues that a sale occurs “when
there is an agreement to exchange a product (controlled substance) for a price without reference to
ownership, title, or even actual possession of the article to be transferred.” He claims that only the
execution of the agreement occurred in Marion County. We disagree.

        First, we note that the defendant stands convicted of delivery, as well. Merger does not
render the guilty verdict for the delivery offense a nullity. Any flaw in the sale conviction would not
affect the delivery conviction.

        Second, we conclude that the defendant has an incorrect view of what constitutes a sale. In
this respect, this court has previously considered the matter.

                  In the absence of a statutory definition for the term “sale,” we are
               left to interpret the plain meaning of the language used in determining
               the intent of the legislature. State v. Hinsley, 627 S.W.2d 351 (Tenn.
               1982). According to Black’s Law Dictionary (5th Ed. 1979), sale is
               defined as a contract between two parties by which the seller, in
               consideration of the payment or promise of payment of a certain price
               in money, transfers to the buyer the title and possession of the
               property. Thus, from the definition, as well as its common usage, a
               sale involves two broad requirements. First, there must be a
               bargained-for offer and acceptance. Secondly, there must be a
               transfer (delivery), actual or constructive, of the subject matter
               property. This notion comports with the statutory definition of
               delivery as “the actual, constructive, or attempted transfer from one
               person to another of a controlled substance, whether or not there is an
               agency relationship.” T.C.A. § 39-17-402(6).

                  Where, as here, the proof establishes that the buyer made an offer
               to buy cocaine and the seller accepted the offer, an exchange of
               money occurred, and the contraband was actually delivered, the
               elements of the indictment offense are clearly supported by the
               evidence. Tenn. R. App. P. 13(e).

                  As to appellant’s argument that the proof supports only a delivery,
               we recognize that delivery is inherent in any sale. To make out the
               offense of sale, therefore, the element of delivery is essential. Here,
               however, the State has also established the requisite offer and
               acceptance, as well as consideration to support the offense of sale.



                                                 -2-
State v. William (Slim) Alexander, No. 01C01-9302-CR-00063, Davidson County, slip op. at 4-5
(Tenn. Crim. App. Mar. 24, 1994). The transfer of money for the substance established venue for
the sale in Marion County.

                                        II. SENTENCING

         The defendant complains about the length of his sentence, the ninety-day confinement, and
the fine. Relative to the length of his sentence and the manner of its service, the defendant does not
point to any procedural or substantive error by the trial court in reaching the ultimate sentence.
Rather, the defendant requests us to reduce the sentence and confinement upon his claim that the trial
court’s sentence is too harsh under the facts. In other words, he asks us to impose our judgment in
lieu of the trial court’s judgment, a task we cannot do. The weight to be afforded existing
enhancement and mitigating factors is left to the trial court’s discretion so long as it complies with
the purposes and principles of the sentencing laws and its findings are adequately supported by the
record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; State v. Moss, 727 S.W.
2d 229, 237 (Tenn. 1986); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Also, the trial court’s
sentencing determinations carry the presumption of correctness on appeal. See Tenn. Code Ann. §
40-35-401(d). The record reflects a prior misdemeanor drug conviction for which the defendant
failed to comply with the conditions of probation. Thus, the defendant has a previous conviction and
has shown the inability to comply with conditions for release into the community. See Tenn. Code
Ann. § 40-35-114(1), (8). Moreover, with his acknowledged history of criminal drug usage, a period
of confinement would be justified to impress upon the defendant the seriousness of his criminal
conduct. See Tenn. Code Ann. § 40-35-103(1)(B). The length of the defendant’s sentence and the
manner of its service are justified.

         We conclude, though, that the fine of $2,500 is inappropriate. As the defendant points out,
the trial court made no mention of a fine during the sentencing hearing, although the jury returned
a fine in the amount of $2,500. This indicates that the trial court rotely imposed the fine returned
by the jury without independent consideration of an appropriate fine. The trial court’s imposition
of a fine is to be based upon the factors and principles of the 1989 Sentencing Act, such as, prior
history, potential for rehabilitation, financial means, and mitigating and enhancing factors, that are
relevant to an appropriate, total sentence. See State v. Bryant, 805 S.W.2d 762, 766 (Tenn. 1991).
Thus, the trial court may not simply impose the fine as fixed by the jury. See State v. Blevins, 968
S.W.2d 888, 895 (Tenn. Crim. App. 1997).

       The trial court’s failure to follow the procedures provided by law regarding fines renders our
review of the fine de novo without a presumption of correctness. Generally, the fine for a Class E
felony may not exceed $3,000. Tenn. Code Ann.§ 40-35-111(b)(5). At the time of the offense and
the time of the sentencing in the trial court, the first conviction for a drug felony mandated a
minimum fine of $2,000. See Tenn. Code Ann. § 39-17-428(b)(7) (1977) (repealed 1999).
However, effective July 1, 1999, after the notice of appeal was filed in this case, the mandatory
minimum fine for the first conviction for a felony counterfeit drug sale was reduced to $1,000. See
Tenn. Code Ann. § 39-17-428(b)(12) (Supp. 2000). In this respect, when an offense is committed


                                                 -3-
and a subsequent amendment to the statute reduces the punishment for that offense, “any punishment
imposed shall be in accordance with the subsequent act.” Tenn. Code Ann. § 39-11-112.

        With the statute being amended after the case was on appeal, the question becomes whether
the lesser penalty is to be applied on appeal. We conclude that it is. When a defendant appeals the
sentence, our review is de novo with a presumption that the trial court’s determinations are correct.
See Tenn. Code Ann. § 401(d). However, when the presumption is overcome, we are authorized to
alter the sentence or to remand the case for resentencing. See Tenn. Code Ann. § 40-35-401(c).
Under such circumstances, the sentences are being imposed by us or the trial court after the statute
has been amended to reduce the punishment. The lesser punishment should be applied.1

        The record reflects that the defendant, now fifty-six years old, completed the twelfth grade.
He denied any physical or mental health problems, but he admitted using marijuana on a regular
basis, including after his conviction. He was living with the eighteen-year-old mother of his ten-
month-old child at the mother’s residence. He said he was self-employed in construction and auto
mechanics, making twenty to twenty-eight thousand dollars per year. Essentially, the defendant had
no assets and no debts.

       Given the defendant’s background and circumstances existing at the time of the sentencing
hearing, we conclude that his pattern of marijuana use is a significant concern. It reflects a
continuing disregard for the law. Although the defendant’s financial means are relatively meager,
we conclude that a fine in the amount of $1,500 is appropriate, particularly for the purpose of the
defendant appreciating the seriousness of his criminal conduct.

       In consideration of the foregoing and the record as a whole, we affirm the defendant’s
conviction and the length and manner of service of his sentence, but we modify his fine to $1,500.




                                                              ___________________________________
                                                              JOSEPH M. TIPTON, JUDGE




        1
          We need not decide if the lesser punishment is to be applied on appeal when the presumption of correctness
is not overcome.

                                                        -4-
