         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 1, 2008

          STATE OF TENNESSEE v. LEONARD RAY FITZGERALD

                   Direct Appeal from the Circuit Court for Henry County
                           No. 14013   C. Creed McGinley, Judge



                   No. W2007-02597-CCA-R3-CD - Filed August 29, 2008


The defendant, Leonard Ray Fitzgerald, was convicted of two counts of sale of over .5 grams of
cocaine, a Class B felony, and sentenced as a Range I, standard offender to concurrent eight-year
sentences, with seven years to be served on probation after one year in the Department of Correction.
The jury assessed a $100,000 fine in each count, which the trial court imposed. On appeal, the
defendant argues that the jury’s verdict was not unanimous, the fines were excessive, and he should
have been sentenced as an especially mitigated offender and granted full probation. Following our
review, we affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., joined.
J.C. MCLIN , J., not participating.

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Leonard Ray Fitzgerald.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Hansel J. McCadams, District Attorney General; and Beth C. Boswell, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

                                              FACTS

                                           State’s Proof

        Paris Police Sergeant Joshua Mann Frey testified that in October 2005 he was approached
by Clifford Beaver, who stated that he was interested in working as an informant and could purchase
drugs from the defendant. Sergeant Frey agreed to pay Beaver $840 to make two drug purchases
from the defendant and testify in court regarding the purchases.
        On October 14, 2005, Sergeant Frey met Beaver behind a church off Highway 79 South and
searched him for drugs. Investigator Ricky Watson searched Beaver’s vehicle. Beaver was given
a baseball cap containing an electronic wire and $200 with which to purchase drugs. The officers
then followed Beaver to his home on Jackson Street and parked in a driveway across the street,
facing Beaver’s house. Beaver went inside, called the defendant, and then came back outside and
sat on his front steps. Twenty to twenty-five minutes later, a grey Chevrolet Tahoe driven by the
defendant arrived at Beaver’s house, and Beaver approached the passenger’s side window of the
vehicle. Sergeant Frey testified that the defendant was the only person in his vehicle. After “[a]
minute,” the defendant drove off and Beaver got into his car and drove back to the church. There,
Beaver handed Sergeant Frey three bags of crack cocaine. The State played for the jury audio and
video recordings of this purchase.

        At about 4:00 p.m. on October 18, 2005, Sergeant Frey again met Beaver at the church. He
searched Beaver, and Investigator Watson searched Beaver’s car and gave him a body wire.
Sergeant Frey rode with Beaver to his house, followed by Investigators Watson and Wyrick. He
accompanied Beaver inside his house, and the investigators parked across the street. Sergeant Frey
searched Beaver’s kitchen, dining room, and living room. Beaver remained in his presence from the
time they got into the car until the purchase took place. Beaver called the defendant and ordered
$200 worth of crack cocaine. At around 7:00 p.m., the defendant drove up and Beaver went outside
to the car. When he returned to the house, he handed Sergeant Frey three bags of crack cocaine. The
State played for the jury audio and video recordings of this purchase. The next day, Sergeant Frey
met Beaver, received a statement from him, and paid him $840.

        On cross-examination, Sergeant Frey testified that on October 14 he did not search Beaver
after he went into his house before the purchase. He said he did not see the defendant hand anything
to Beaver during either purchase. He stated that on October 18, it was dark outside when the
defendant arrived, and he could not see what Beaver did when he was at the defendant’s car.

        Clifford Richard Beaver, Jr. testified that he was convicted of misdemeanor theft after
working as a confidential informant in this case. He denied that he was promised any consideration
regarding his criminal charges in exchange for working as an informant. He stated that he previously
had been addicted to crack cocaine and marijuana and entered a rehabilitation program in January
2006. He completed the rehabilitation program in September 2006 and later returned to work at the
rehabilitation center.

       Beaver testified that he contacted Sergeant Frey about working as an informant because he
was in financial trouble and believed that he could curb his drug addiction if he made his supplier
unavailable. He told Sergeant Frey that he could purchase drugs from the defendant, and they agreed
on a payment of $840. He testified that he met the defendant through a friend of his who purchased
crack cocaine from a trailer on Cooper Street. “Tammy,” who lived in the trailer, coordinated the
defendant’s crack cocaine sales. One day, after Beaver had purchased some cocaine from “Tammy,”
the defendant drove up and approached him as he got into his car. The defendant told Beaver,



                                                -2-
“[Y]ou don’t have to go through them no [sic] more. If you need something you just call me
direct[.]” Thereafter, Beaver began purchasing drugs directly from the defendant.

        Beaver testified that on October 14, 2005, he met Sergeant Frey at the church off Highway
79. Sergeant Frey searched him while Investigator Watson searched his car. Sergeant Frey gave him
a baseball cap wired with a transmitter to provide an audio recording of the transaction and $200
with which to purchase cocaine. He drove to his house, followed by the officers. When he arrived,
he called the defendant and told him he needed “two brothers bill” – $200 worth of crack cocaine.
He went outside and waited for the defendant on his front steps. When the defendant arrived in his
vehicle, Beaver walked up, engaged in some “idle conversation” with him, handed him $200,
received three rocks of crack cocaine, and walked back inside his house. Once the defendant left,
Beaver got into his car, drove back to the church, and gave the crack cocaine to Sergeant Frey.

        On October 18, 2005, Beaver again met with officers at the church, where he and his car were
searched and he was given $200 and the wired baseball cap. On this date, Sergeant Frey rode with
him as he drove back to his house, followed by the other officers. When they arrived, he and
Sergeant Frey went inside his house. Sergeant Frey set up a camera in the window, and Beaver
called the defendant. The defendant said he was out of town and would contact Beaver on his way
home. He called back later, and Beaver asked him for “two bills.” Shortly thereafter, the defendant
called back and said he was in the area. Beaver went outside to the defendant’s car, and the
defendant asked, “You need two bills?” Beaver responded yes and handed the defendant $200. The
defendant gave Beaver three bags of crack cocaine, and Beaver returned to his house and gave the
bags to Sergeant Frey. The next day, Beaver met Sergeant Frey and received his $840 payment.

        On cross-examination, Beaver testified that he had been using cocaine since approximately
February 2005. He stated that he had been using marijuana “off and on” since he was thirteen years
old, and on a regular basis since around age sixteen. He testified that he was not sure when he most
recently smoked marijuana prior to the October 14 purchase and stated that it “[c]ould have been”
the previous day. He denied that his cocaine and marijuana use had affected his memory. He
acknowledged that, in the past, he had lied and cheated to get drugs but denied that he had stolen to
get drugs. Regarding his theft conviction, he admitted that he pled guilty but stated, “To me it
wasn’t stealing. In the law’s eyes it was stealing.” He further acknowledged pleading guilty in
November 2005 to a charge of writing bad checks. He denied that he had ever borrowed money
from the defendant. He testified that he purchased crack cocaine and marijuana after receiving his
$840 payment from Sergeant Frey.

         Special Agent Erica Katherine, a forensic scientist with the Tennessee Bureau of
Investigation, testified that she analyzed the substances sold to Beaver by the defendant and found
that the first substance weighed 1.1 grams and contained cocaine, and the second substance weighed
1.2 grams and contained cocaine.

       Henry County Sheriff’s Department Sergeant Scott Wyrick testified that he drove the
undercover vehicle and operated the video equipment during the October 14 and 18 drug purchases.


                                                -3-
He was present when the defendant was arrested at his home on December 28, 2005. He testified
that when an officer read the arrest warrant to the defendant, the defendant asked “what he sold and
who did he sell it to.”

                                           Defense Proof

        Tammy Johnson testified that she had been friends with the defendant for “twenty, twenty-
five years” and knew Beaver because he used to visit one of her neighbors. She testified that she
introduced Beaver to the defendant. She stated that she occasionally borrowed money from the
defendant and that Beaver asked her if the defendant would lend him money as well. She testified
that she “knew” the defendant had loaned money to Beaver. On cross-examination, Johnson said
that she had seen money change hands between the defendant and Beaver. She acknowledged that
she had written “several” bad checks in the last ten years.

         The defendant testified that he met Beaver through Johnson and lent him money “several
times.” He said the maximum he loaned to Beaver at one time was $200 and that Beaver always
paid the money back, albeit not always on time. He testified that Beaver devised a code whereby he
would call and say, “I need to holler at Bill” when he needed to borrow money, in order to keep his
borrowing a secret from his wife. He denied that he sold drugs to Beaver on October 14 or 18. He
testified that on October 14, he went to Beaver’s house and Beaver gave him a one hundred dollar
bill. He denied giving anything to Beaver that day. He stated that, on October 18, he went to
Beaver’s house and loaned him $200.

         Following deliberations, the jury found the defendant guilty of two counts of sale of over .5
grams of cocaine and assessed a $100,000 fine in each count. At the sentencing hearing, the State
introduced the defendant’s presentence report as an exhibit to the proceedings. The defendant
testified that he was fifty-seven years old and had completed high school and one year of college.
He said that he owned and managed sixteen units of rental property. He acknowledged that selling
drugs was a “serious problem” and stated that “something should be done about it.” On cross-
examination, he testified that he did not accept the jury’s verdict: “I’m saying I disagree with how
the jury was – what happened within the jury. I don’t think – what I’m saying is I don’t think it was
clear. To me, I don’t think it was clear.”

       In sentencing the defendant, the trial court stated:

              He is a Class – Range I, [s]tandard [o]ffender, so that makes an appropriate
       range available of eight (8) to twelve (12) years on each of these two offenses.

              There is no statutory criteria under which the convictions would be
       consecutive, so sentencing will be concurrent.

              The jury had recommended a fine of one hundred thousand dollars
       ($100,000.00) on each count, which is confirmed by the Court.


                                                 -4-
                There is requested restitution in the amount of four hundred ($400.00), which
        is hereby ordered by the Court. It will be two hundred ($200.00) on each count.

              The Court finds, essentially, that he is entitled to be sentenced to the lowest
        amount in his range, because I don’t find any enhancement factors.

               I don’t find that the criminal conduct did not threaten serious bodily injury
        because, I think the inherent nature of crack cocaine, that[] it’s inappropriate for the
        Court to find that.

              As I said, I’m going to sentence him to the minimum within the range which
        would be eight (8) years on each count. They will be concurrent.

                The situation concerning potential alternative sentencing. He is not
        presumptively eligible having been convicted of a [C]lass B [felony], but our statutes
        make reference that the Court should look to see if confinement – the reasons,
        whether it is necessary to protect society to avoid [] depreciating the seriousness of
        the offense, or measures less restrictive than confinement have frequently or recently
        been applied.

                I don’t condone what has occurred. And the evidence was quite simply
        overwhelming. The video of his vehicle. And the man, essentially, was running a
        drug store out of his Ford Bronco or whatever the vehicle was . . . which gives the
        Court great concern, because I don’t want to depreciate the seriousness of this
        offense.

                However, the Court finds that split confinement would be appropriate in this
        case. I’m going to require that he serve one (1) year, the balance of seven (7) years
        will be on supervised probation.

                                                ANALYSIS

        The defendant argues that the jury’s verdict was not unanimous1 and that the $100,000 fines
fixed by the jury were excessive. He also argues that he should have been sentenced as an especially
mitigated offender and granted full probation. The State argues that the jury’s verdict was
unanimous, the fines were not excessive, and the trial court properly sentenced the defendant. As
we will explain, we agree with the State.




        1
          The defendant frames this issue as a challenge to the sufficiency of the evidence but argues that the
insufficiency lies in the jury’s alleged lack of unanimity.

                                                     -5-
                                          I. Jury Unanimity

        In Tennessee, a criminal defendant enjoys a constitutional right to a jury trial when facing
the possibility of confinement or a fine of more than fifty dollars. See Tenn. Const. art. I, § 9; State
v. Lemacks, 996 S.W.2d 166, 169 (Tenn. 1999). “This constitutional right necessarily includes the
right to a unanimous jury verdict before conviction of a criminal offense may be imposed.” Id. at
169-70; see also Tenn. R. Crim. P. 31(a).

        Tennessee Rule of Criminal Procedure 31(e) provides:

                After a verdict is returned but before the verdict is recorded, the court
        shall–on a party’s request or on the court’s own initiative–poll the jurors individually.
        If the poll indicates that there is not unanimous concurrence in the verdict, the court
        may discharge the jury or direct the jury to retire for further deliberations.

The method used to poll the jury is left to the discretion of the trial court. State v. Clayton, 131
S.W.3d 475, 479 (Tenn. Crim. App. 2003). “‘[N]o particular form of answer is essential on the
polling of a jury, it being sufficient if the answer of the juror . . . indicates with reasonable certainty
that the verdict is his [or her] own.’” Id. (quoting Dixon Stave & Heading Co. v. Archer, 291
S.W.2d 603, 608 (Tenn. Ct. App. 1956)). The determination of whether a juror’s answer to the jury
poll is equivocal is within the trial court’s discretion. Id.

        The defendant argues that “[a]fter polling the jury, it came to the Court’s attention that one
of the jurors had reasonable doubt as to a guilty verdict.” During the poll of the jury, the following
exchange took place:

        THE COURT: [Juror], is that your verdict?

        [JUROR]: I don’t completely agree with everyone, but I think that there should be
        more evidence finding him guilty. I do go along with the guilty verdict.

        THE COURT: Okay. It must be unanimous, you understand? So your verdict is
        guilty?

        [JUROR]: Guilty.

        THE COURT: $100,000 fine, .5 grams, over .5 grams. Is that correct[?]

        [JUROR]: (Nods affirmatively)

        THE COURT: Any question that that is correct?

        [JUROR]: No.


                                                   -6-
        We disagree with the defendant that this exchange demonstrates that the verdicts were not
unanimous. Although her initial answer was equivocal, upon further questioning by the trial court
the juror stated that her verdict was guilty. At no time did she express a belief that the defendant was
not guilty of the offenses. As we have set out, the method by which the jury is polled and the
determination of whether a juror’s answer to the poll is equivocal are matters entrusted to the trial
court’s discretion. This assignment is without merit.

                                          II. Amount of Fines

         In Tennessee, no fine greater than fifty dollars may be assessed against a citizen except by
a jury. Tenn. Const. art. VI, § 14. In a case where the range of punishment includes a fine in excess
of fifty dollars, the jury finding the defendant guilty shall fix the fine, if any, in excess of fifty dollars
and report the fine with the verdict of guilty. Tenn. Code Ann. § 40-35-301(b) (2006). When
imposing sentence, after the sentencing hearing, the trial court shall impose a fine, if any, not to
exceed the fine fixed by the jury. Id.

         This court has the authority to review fines imposed by the trial court. State v. Bryant, 805
S.W.2d 762, 766 (Tenn. 1991). The trial court’s imposition of a fine, within the limits set by the
jury, is to be based upon the factors provided by the Criminal Sentencing Reform Act of 1989. State
v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002). The defendant’s ability to pay the fine is a factor to be
considered in determining the total sentence, but is not necessarily a controlling factor. State v.
Patterson, 966 S.W.2d 435, 446 (Tenn. Crim. App. 1997). Trial and appellate courts must also
consider other factors including prior history, potential for rehabilitation, financial means, mitigating
and enhancement factors, and the seriousness of the conviction offense. Taylor, 70 S.W.3d at 723.
A significant fine is not automatically precluded just because it works a substantial hardship on a
defendant. State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). “A substantial fine
may be punitive in the same manner that incarceration may be punitive.” Patterson, 966 S.W.2d at
446.

       In this case, the jury assessed a fine of $100,000 for each count, the maximum fine for an
offender convicted of the sale of over .5 grams of cocaine. See Tenn. Code Ann. § 39-17-417(c)(1)
(2006). At the hearing on the defendant’s motion for a new trial, the trial court stated:

                Concerning the fine. The jury set that fine. This appears to be a person of
        some resource. If he were indigent it might be a different situation where the Court
        might view adjustment in an – more appropriate light . . . . And the jury, I don’t
        recall. I think they might have had some information concerning that he had rental
        property and things of this nature. If not, the Court was aware of that at the time of
        sentencing and there is nothing to indicate that it’s excessive. The record would
        probably support that the jury was offended by someone that would deal drugs and
        did impose or recommend the statutory maximum.



                                                     -7-
       The defendant argues that the fines are excessive because “[t]he amount involved on each
occasion was 1.2 grams and 1.1 grams base cocaine. Past jurors in Henry County have assessed fines
of much less for larger amounts.” He cites no authority in support of this claim, however.
Furthermore, it appears that in fixing the fine the trial court properly considered the statutory factors,
including the seriousness of the offense and the defendant’s financial resources. Although the
defendant has no prior criminal history, he was convicted of two counts of a Class B felony. His
presentence report reflects that he has net assets of $339,963.93. He is not entitled to relief on this
claim.

                                            III. Sentencing

        When an accused challenges the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review on the record 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) (2006). 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). The presumption does not apply to the legal
conclusions reached by the trial court in sentencing the accused or to the determinations made by the
trial court which are predicated upon uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311
(Tenn. Crim. App. 1994); State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v.
Bonestel, 871 S.W.2d 163, 166 (Tenn. Crim. App. 1993), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, this court is required to give great weight to the
trial court’s determination of controverted facts as the trial court’s determination of these facts is
predicated upon the witnesses’ demeanor and appearance when testifying.

        In conducting a de novo review of a sentence, this court must consider (a) any evidence
received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of
sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the nature and
characteristics of the offense, (f) any mitigating or enhancement factors, (g) any statements made by
the accused in his own behalf, and (h) the accused’s potential or lack of potential for rehabilitation
or treatment. Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411
(Tenn. Crim. App. 2001). Enhancement factors may be considered only if they are “appropriate for
the offense” and “not already an essential element of the offense.” Tenn. Code Ann. § 40-35-114
(2006).

        The party challenging the sentence imposed by the trial court has the burden of establishing
that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Commission Cmts.;
Ashby, 823 S.W.2d at 169. In this case, the defendant has the burden of illustrating the sentence
imposed by the trial court is erroneous. If our review reflects that the trial court, following the
statutory sentencing procedure, imposed a lawful sentence, after having given due consideration and
proper weight to the factors and principles set out under the sentencing law and made findings of fact
that are adequately supported by the record, then we may not modify the sentence even if we would
have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).


                                                   -8-
                                    A. Offender Classification

        The defendant argues that the trial court should have found him to be an especially mitigated
offender, not a standard offender. A trial court may find that the defendant is an especially mitigated
offender if the defendant has no prior felony convictions and the court finds mitigating, but not
enhancement, factors. Tenn. Code Ann. § 40-35-109(a) (2006) (emphasis added). Even if the
defendant satisfies these statutory prerequisites, “[w]hether an accused should be sentenced as an
especially mitigated offender is a question which rests within the sound discretion of the trial court.”
State v. Braden, 867 S.W.2d 750, 762 (Tenn. Crim. App. 1993). If the court finds the defendant is
an especially mitigated offender, the court shall reduce the defendant’s statutory Range I minimum
sentence by ten percent, reduce the release eligibility date to twenty percent of the sentence, or both.
Tenn. Code Ann. § 40-35-109(b) (2006).

        The defendant argues that he should have been sentenced as an especially mitigated offender
because he had no prior felony convictions and “[t]he crime itself was not one of violence, nor
causing a victim serious bodily harm[.]” However, the trial court did not find any mitigating factors
applicable to the defendant. The court specifically rejected the sole mitigating factor proposed by
the defendant, that his conduct neither caused nor threatened serious bodily injury. Therefore, the
defendant was ineligible to be sentenced as an especially mitigated offender.

                                    B. Denial of Full Probation

        Finally, the defendant argues that he should have been granted full probation. A defendant
shall be eligible for probation, subject to certain exceptions, if the sentence imposed upon the
defendant is ten years or less. Tenn. Code Ann. § 40-35-303(a) (2006). Even if eligible, however,
the defendant is not automatically entitled to probation as a matter of law. See Tenn. Code Ann. §
40-35-303(b). The burden is on the defendant to show the denial of probation was improper. Id.; see
also State v. Summers, 159 S.W.3d 586, 599-600 (Tenn. Crim. App. 2004) (citing Ashby, 823
S.W.2d at 169); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997) (stating that “[a]
criminal defendant seeking full probation bears the burden on appeal of showing the sentence
actually imposed is improper, and that full probation will be in both the best interest of the defendant
and the public”).

        There is no bright line rule for determining when a defendant should be granted probation.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995), overruled on other grounds by
State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Every sentencing decision necessarily requires a
case-by-case analysis. Id. Factors to be considered include the circumstances surrounding the
offense, the defendant’s criminal record, the defendant’s social history and present condition, the
need for deterrence, and the best interest of the defendant and the public. State v. Goode, 956
S.W.2d 521, 527 (Tenn. Crim. App. 1997). Further, Tennessee Code Annotated section
40-35-103(1) states that a sentence of confinement should be based on the following three
considerations:


                                                  -9-
         (A) Confinement is necessary to protect society by restraining a defendant who has
         a long history of criminal conduct;

         (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
         confinement is particularly suited to provide an effective deterrence to others likely
         to commit similar offenses; or

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

       In imposing a split sentence of one year in the Department of Correction and seven years on
probation, the trial court stated in part:

                 I don’t condone what has occurred. And the evidence was quite simply
         overwhelming. The video of his vehicle. And the man, essentially, was running a
         drug store out of his Ford Bronco or whatever the vehicle was . . . which gives the
         Court great concern, because I don’t want to depreciate the seriousness of this
         offense.

        The defendant argues that he is a favorable candidate for probation because he does not have
a long history of criminal conduct, and measures less restrictive than confinement have not been
applied to him unsuccessfully. See Tenn. Code Ann. § 40-35-103(1)(A), (C). However, the trial
court found that confinement was necessary to avoid depreciating the seriousness of the offense. See
Tenn. Code Ann. § 40-35-103(1)(B). This finding is supported by the record. As we have set out,
the defendant was convicted of two counts of a Class B felony, the second-highest felony
classification in our criminal code. He concedes that “[n]o one will deny the seriousness of the
offense of drug dealing.” The defendant has not satisfied his burden of showing that the denial of
full probation was improper.2

                                                  CONCLUSION

       Based on the foregoing authorities and reasoning, the judgments of the trial court are
affirmed.

                                                                  ___________________________________
                                                                  ALAN E. GLENN, JUDGE




         2
           As we understand, the defendant also argues that “deterrence alone should not have prevented the [trial
court]” from granting him full probation. However, the record does not reflect that the trial court based its determination
on the need for deterrence.

                                                          -10-
