            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1998               FILED
                                                             October 12, 1998

                                                          Cecil Crowson, Jr.
STATE OF TENNESSEE,                  )                       Appellate C ourt Clerk
                                     )   No. 03C01-9711-CR-00508
      Appellee                       )
                                     )   GREENE COUNTY
vs.                                  )
                                     )   Hon. JAMES E. BECKNER, Judge
CARLOS LAMONT MARTIN,                )
                                     )   (Possession of Crack Cocaine)
      Appellant                      )



For the Appellant:                       For the Appellee:

D. Clifton Barnes                        John Knox Walkup
Assistant District Public Defender       Attorney General and Reporter
Third Judicial District
1609 College Park Drive, Box 11          Michael J. Fahey, II
Morristown, TN 37813                     Assistant Attorney General
                                         Criminal Justice Division
                                         425 Fifth Avenue North
Greg W. Eichelman                        2d Floor, Cordell Hull Building
District Public Defender                 Nashville, TN 37243-0493


                                         C. Berkeley Bell, Jr.
                                         District Attorney General

                                         Eric D. Christiansen
                                         Asst. District Attorney General
                                         109 South Main Street
                                         Greeneville, TN 37743




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                             OPINION



        The appellant, Carlos Lamont Martin, appeals as of right his conviction for

possession of a schedule II controlled substance, a class A misdemeanor.1

Following a jury trial, the Greene County Criminal Court sentenced the appellant to

eleven months and twenty-nine days with a release eligibility of seventy-five

percent.2 In this appeal, the appellant contends that the evidence is insufficient to

support his conviction and that the sentence imposed by the trial court is excessive.



        After a review of the record, we affirm the judgment of conviction and

sentence entered by the trial court.




                                           Background



        Around 2:20 p.m. on December 7, 1996, Greeneville Police Officer Tim

Hartman was on patrol in an area of Greeneville known as “The Wall.” “The Wall” is

a concrete block wall or structure extending along Davis Street to Sumner Street,

and is an area where people routinely congregate. On this date, Officer Hartman

observed a group of about eight to fifteen men gathered near “The Wall.” One

person, whom Officer Hartman knew to be the appellant, made “a quick sudden

movement,” stepped away from the street, reached over to place something above

“The Wall” into the grass, and walked away from “The Wall.” No other person was

near the object.




        1
          The appellant was originally charged with felony possession of crack cocaine with the
intent to sell, a c lass B fe lony.

        2
          This sentence was ordered to run consecutive to three outstanding convictions for
forgery, failure to appear, and theft under $500, for an effective sentence of four years.

                                                2
       Officer Hartman noticed that the object was reflecting sunlight and thought

that the object might be something used to contain drug paraphernalia. He

proceeded to exit his patrol car and walked directly to the object, which he

recognized as a wadded ball of aluminum foil. Upon unfolding the aluminum foil,

Officer Hartman discovered what appeared to be crack cocaine packaged in the

cellophane wrapper from a pack of cigarettes. Hartman placed the contraband in

his pocket, walked straight to the appellant, who was standing near the patrol car,

and placed him under arrest for the possession of crack cocaine. A subsequent

search of the appellant revealed no drug paraphernalia or articles indicative of drug

trafficking on his person.



       At trial, David Holloway, a forensic scientist with the Tennessee Bureau of

Investigation crime laboratory in Knoxville, confirmed that the contraband seized by

Officer Hartman contained one-half gram of cocaine base, a schedule II drug. The

appellant, in his own defense, denied having any contact with or possession of the

wadded ball of aluminum foil containing crack cocaine seized by Officer Hartman.



       Based upon this evidence, the jury found the appellant guilty of simple

possession of crack cocaine.




                             I. Sufficiency of the Evidence



       The appellant contends that the evidence is not sufficient to support a

conviction for simple possession of cocaine. In support of this issue, he argues that

“it was not proven beyond a reasonable doubt that the cocaine found on the wall

was sufficiently connected to the appellant for this conviction to stand.” Specifically,

he avers that “the officer’s testimony that he observed the actions of the appellant in

a crowd of eight to twelve people from 150 to 200 yards is an impossibility.”


                                         3
       When there is a challenge to the verdict based on the sufficiency of the

evidence, this court must review the evidence in the light most favorable to the

prosecution and determine whether “any rational trier of fact could have found the

essential elements of the crime 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). We do not reweigh or reevaluate the

evidence; these are issues resolved by the trier of fact. State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony

of witnesses for the State and a presumption of guilt replaces the presumption of

innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, before an

appellate court may disturb a jury’s finding of guilt, the appellant must prove that the

evidence was insufficient to support the jury verdict in his case. State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).



       Before the State may succeed in a prosecution for simple possession of

cocaine, the proof must show that the appellant was in possession of a controlled

substance. See Tenn. Code Ann. § 39-17-418(a) (1996 Supp.). There is no

dispute as to the nature of the contraband substance. The only issue is whether the

appellant was in possession of the controlled substance.      Possession of a

controlled substance may be actual or constructive. State v. Cooper, 736 S.W.2d

125, 129 (Tenn. Crim. App. 1987). If a person is found to have the power and

intention at a given time to exercise dominion and control over the substance, he is

in constructive possession thereof. Id. at 129 (citations omitted). Although mere

presence in the area where the drugs are discovered is not enough to show

possession, State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996), the

proof shows that the appellant was more than merely present in the area where the

cocaine was found. Specifically, Officer Hartman observed the appellant place the

object containing the cocaine on the top of the wall. Obviously, by returning a guilty

verdict, the jury rejected the appellant’s denial of culpability and possession and


                                         4
accredited the officer’s version of the events. It is not within the authority of this

court to reweigh or reevaluate the testimony of the witnesses. State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). The appellant has had his day in court and this

court will not and cannot substitute its judgment for that of the finder of fact and

arbiter of credibility. Cabbage, 571 S.W.2d at 835. Accordingly, we find the proof

sufficient to establish that the appellant was in possession of crack cocaine. Tenn.

R. App. P. 13(e). This issue is without merit.



                                     II. Sentencing



       In his final issue, the appellant contends that the sentence imposed by the

trial court is excessive and contrary to the principles of sentencing. Specifically, he

contends (1) that the trial court committed error by considering the original charge of

possession with intent to sell, although the appellant was convicted of the lesser

offense of simple possession and (2) that the State’s argument that the sentence

must be enhanced due to its proximity to a school is misplaced. These arguments

are inaccurate. First, the record does not reflect that the trial court considered the

original charge of possession with intent to sell in reaching its sentencing

determination. Moreover, even though the State argued for enhancement based

upon the proximity to a school, the trial court explicitly rejected this argument. Thus,

we find no need to address these contentions of the appellant. Notwithstanding, the

appellant also asserts that the trial court failed to weigh enhancement and mitigating

factors properly.



       The record indicates that the trial court considered relevant sentencing

principles, thus, this court conducts a de novo review coupled with a presumption

that the trial court’s sentencing determinations are correct. Tenn. Code Ann. § 40-

35-401(d) (1990); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Although

otherwise entitled to the same considerations under the Sentencing Reform Act of


                                           5
1989, unlike a felon, a misdemeanant is not entitled to the presumption of a

minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App.

1995) (citation omitted). Moreover, the trial judge is granted a greater flexibility of

discretion in arriving at the appropriate sentence than in felony cases.



        Even in light of the court’s discretion and the less stringent procedures

permitted in misdemeanor sentencing, a misdemeanor offender must be sentenced

to a determinant sentence, including a percentage of that sentence which the

offender must serve before becoming eligible for consideration of rehabilitative

programs. Tenn. Code Ann. 40-35-302(b), (d) (1990); see also State v. Palmer, 902

S.W.2d 391, 394 (Tenn. 1995). The appellant was convicted of a class A

misdemeanor. Thus, his sentence may not exceed 11 months and 29 days, Tenn.

Code Ann. § 40-35-111(e)(1) (1990), and he must be sentenced to a percentage of

not greater than seventy-five percent of that sentence. Palmer, 902 S.W.2d at 393-

394. In determining the percentage of the sentence, the court may consider

enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Tenn. Code Ann. § 40-35-302(d); Palmer, 902

S.W.2d at 393-94; State v. Gilboy, 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993).

However, the statutory enhancement and mitigating factors do not have to be the

only factors considered by the trial court in determining the appropriate sentence.

The court should examine the misdemeanor offense in the light and character of the

circumstances of the offense as well as under the mandated sentencing principles.

State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3,

1996), perm. to appeal denied, (Tenn. Nov. 4, 1996) (citing Gilboy, 857 S.W.2d at

889).



        In determining the appropriate sentence, the trial court, in the present case,

found three enhancement and no mitigating factors applicable. Specifically, the trial

court found that the appellant (1) has a previous history of criminal convictions,


                                          6
Tenn. Code Ann. § 40-35-114(1) (1996 Supp.); (8) has a previous history of

unwillingness to comply with conditions of a sentence involving release into the

community, Tenn. Code Ann. 40-35-114(8); and that (13) the offense was

committed while on probation, Tenn. Code Ann. § 40-35-114(13)(c). The record

supports the trial court’s application of factors (1) and (8). The appellant has prior

convictions for forgery, failure to appear, theft under $500, DUI, and juvenile

adjudications. Additionally, he was on probation when the current offense was

committed, indicating his unwillingness to comply with conditions of release.

Although factor (13) applies only to a felony committed while on release for another

felony, consideration of the premise underlying this factor is appropriate in

misdemeanor sentencing when determining the appellant’s release percentage.

See Tenn. Code Ann. § 40-35-302(d).



       The record supports the trial court’s findings regarding enhancement and

mitigating factors. We conclude that the appellant has not met his burden of

showing that service of his sentence at seventy-five percent is improper.

Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401. Rather, the

record indicates that such a sentence is more than justified. This issue is also

without merit.



       In consideration of the record before us and the applicable law, we find no

error of law requiring reversal. Accordingly, the judgment of conviction and

sentence imposed by the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




                                          7
CONCUR:



________________________________________
JOHN H. PEAY, Judge



________________________________________
JOSEPH M. TIPTON, Judge




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