        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                      NOVEMB ER SESSION, 1998       February 8, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9711-CC-00507
                           )
      Appellee,            )
                           )
                           )    HUMPHREYS CO UNTY
VS.                        )
                           )    HON. ALLEN W. WALLACE
DARYL HOOPER,              )    JUDGE
                           )
      Appe llant.          )    (Direct Appe al - Posses sion of
                           )    Marijuana for Resale)




FOR THE APPELLANT:              FOR THE APPELLEE:

MICHAEL J. FLANAGAN             JOHN KNOX WALKUP
DALE M. QUILLEN                 Attorney General and Reporter
95 White Bridge Rd. #208
Nashville, TN 37205             TIMOTHY BEHAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243-0493

                                DAN ALSOBROOKS
                                District Attorney General

                                GEORGE T. SEXTON
                                District Attorney General
                                Humphreys County Courthouse
                                Wa verly, TN 37085



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION


       On June 4, 1997, a Humphreys County jury convicted Appe llant Daryl

Hooper of possession of more than ten pounds of marijuana for resale and

possession of drug parap hernalia. After a sentencing hearing on July 22, 1997,

the trial court imposed concurrent sentences of four years for the marijuana

conviction and eleven months and twenty-nine days for the para phern alia

conviction. Appe llant ch alleng es bo th his convictions and his sentences, raising

the following issues:

       1) whether the trial cou rt erred when it allowe d the jury to hear a n

       audiotape of a prior statement of a witness; and

       2) wheth er the trial co urt prope rly senten ced Ap pellant.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       On May 29, 1996, Officer Joe Taylor of the Conway, Arkansas Police

Department mad e a traffic stop o f a vehic le driven by Charles Carr.            After

obtaining consent from Carr and his p assenge r, Kenne th McKee, Officer Taylor

conducted a search of the vehicle. During the search, Officer Taylor discovered

twenty-three packages containing 21 .47 pound s of marijuana .                  After a

conversation with McKee, Officer Taylor contacted Police Chief John Ethridge of

the McEwen, Tennessee Police Department about making a controlled delivery

of the m arijuana in Tenn essee .




                                           -2-
      After obtaining the marijuana , Officer Billy Hudspe th of the Twe nty-third

Judicial District Drug Task Force accompanied McKee to Appellant’s residence

in McEwen.     W hen Hudspeth and McKee arrived at Appellant’s residence,

Appellant came to the door and McKee stated that he had the package from

Albuquerque. Hudspeth and McKee left the marijuana with Appellant and then

drove aw ay.



      A short time later, Officer Hudsp eth and seve ral other police officers

returned to App ellant’s residence and found that Appellant was not in his house.

After a brief sea rch of the s urround ing prop erty, the office rs found Appellant

hiding in some weeds about 100 yards from his house. After Appellant was taken

into custody, he told the officers where the marijuana w as located. Th e officers

subse quently fo und all of th e mariju ana alo ng with a s mall sm oking pip e.



      McKee testified during a jury out hearing at trial that he su ffered from sho rt

and long term memory loss and he could not recognize Appellant as someone

he knew. McKee stated that he remembered talking to Officer Hudspeth, but he

did not remember whether those conversations were tape recorded. McKee also

stated that he remembered telling Officer Hudspeth that he had transported the

marijuana from New Mexico to Tennessee, but he could not remember where he

actua lly delivered the marijuana. The State then played a tape recording of a

conversation between McKee and Officer Hudspeth about several drug

transactions McKee had with Appellant. After listening to the tape, McKee stated

that he rem emb ered h aving th e con versa tion with Office r Hud speth , but he did

not rem embe r any of the events d iscusse d during the conv ersation.




                                          -3-
      McKee then testified , in the pres ence o f the jury, that he suffered from

mem ory loss and confusion and that he remembered talking to Officer Hudspeth,

but he had no present memory of the matters discussed in the conversation. The

trial court the n allowed the State to play the ta pe in the p resenc e of the jury.



       On the tape, McKee stated that he first came into contact with Appellant

when he saw Appellant smoking marijuana and h e ask ed Ap pellan t how h e cou ld

obtain some marijuana for himself. Over the next few months, McKee purchased

marijuana from Appellant on four or five occasions. McKee stated that he had

agreed to transpo rt marijuan a for App ellant in ord er to pay o ff a debt that h e

owed to Appellant. McKee then traveled to Albuquerque and checked into a

motel selected by App ellant. At some point, a Mexican man came to the motel

and asked for the keys to McKee’s vehicle. A few hours later, the man returned

and told McKee that the vehicle was ready to go. McKee also stated that he had

transported another load of marijuana for Appellant by following this sam e bas ic

proced ure.



                       II. PLAYING OF THE AUDIOTAPE




       Appellant contends that the trial court erred when it allowed the jury to

listen to the audiotape of the conversation between McKee and Officer Hudspeth.

Specifically, Appella nt claims th at the ta pe wa s inad miss ible un der bo th Ru le

803(5) and Rule 404(b) of the Tennessee Rules of Evidence and because

playing the tap e to the jury dep rived h im of h is cons titutiona l right to

confrontation.




                                          -4-
                                             A. Rule 803(5)




         Appellant conten ds that the audiota pe wa s not a dmis sible u nder R ule

803(5) because the requirements of the rule we re not s atisfied . Unde r Rule

803(5),

         A memorandum or record concerning a matter about which a witness once
         had knowledge but now has in sufficie nt reco llection to ena ble the witness
         to testify fully and a ccurate ly, shown to have been made or adopted by the
         witness when the matter was fresh in the witness’s memory and to reflect
         that knowledge correctly. If admitted, the memorandum or record may be
         read into evidence but may not itself be received as an exhibit unless
         offered by an a dverse party.

Tenn. R. Evid. 8 03(5).              Unlike writings used to refresh a witness’s present

recollection under Rule 612 of the Tennessee Rules of Evidence, recorded

recollections admitted in accord ance w ith Rule 803(5) are themselves

substantive evidenc e. See Leach v. State, 220 Tenn. 526, 420 S.W.2d 641, 642

(1967).



         To utilize Rule 803(5)’s recorded recollection exception to the hearsay rule,

a party must (1) provide a memorandum or record;1 (2) abou t a matter that the

witness once had knowledge of;                       (3) establish that the witness now has

insufficient recollection to testify fully and accurately; (4) that the statement was

made or adopted by the witness; (5) while fresh in the witness’s memory, and;

(6) that the rec ord acc urately reflec ts the witne ss’s kno wledge . See State v.

Math is, 969 S.W .2d 418, 422 (Tenn . Crim. A pp. 199 7); N EIL P. C OHEN ET AL.,

T ENNESSEE L AW OF E VIDENCE § 803(5).2, at 55 7–58 (3d e d. 1995).


         1
              The re cord m ay be a tap e record ing. Mitc hell v. A rchib ald, 971 S.W .2d 25, 28 n.4 (Te nn. Ct.
App. 19 98). See also United States v. Sollars, 979 F.2d 1294, 1298 (8th Cir. 1992); 2 M C C O R M I C K O N
E V I D E N C E § 281 (John W . Strong 4th ed. 1992).




                                                       -5-
         The audiotape of McKee’s statement meets Rule 803(5)’s requirements as

a past reco llection reco rded. F irst, the re cord w as in th e form of an a udio

recording. Second, McKee had first hand knowledge of activities he discussed

in the tape recorded conversation because he participated in them. Third, McKee

stated that he remembered having the conversation with Hudspeth, but he did not

remember any of the events discuss ed durin g the con versation . Fourth, McKee

testified that the voice on the tape was his. Fifth, the detailed nature of the

statement indicates that it was m ade at a time when the matte r was s till fresh in

McK ee’s memory. Finally, McKee testified that he told the truth when he made

the statem ent. Thu s, playing th e tape in th e presence of the jury was proper

under Ru le 803(5). 2



                                             B. Rule 404(b)




         Appellant contends that the audiotape was not admissible unde r Rule

404(b) because it contained reference to other crimes committed by Appella nt.

Rule 404(b) states

         Evidence of other crimes, wrongs, or acts is not admissible to prove the
         character of a person in order to show action in confo rmity with the
         character trait. It may, however, be admissible for other purposes. The
         conditions which must be satisfied before allowing such evidence are:

                  (1) The court upon request must hold a he aring o utside the jury’s
                  presence;




         2
          Appellant argues that even if the statement was admissible under Rule 803(5), the proper
proced ure wou ld have be en to rea d a trans cript of the ta pe to the ju ry rather than playing the tap e itself. It
is true that Rule 803(5) does not expressly provide for the playing of audio or videotapes. However, we
conclude that if the record is an audio or video recording, there is no reason why the tape should not be
played to the jury during trial and transcribed in the record at that time. Indeed, the Tennessee Court of
Appeals has upheld the playing of an audiotape to the jury because the tape qualified as a recorded
recollection under R ule 803(5 ). See Mitc hell, 971 S.W.2d at 28–29.




                                                       -6-
                (2) The court m ust deter mine th at a material issue exists other than
                conduct conforming with a character trait and must upon request
                state on the record the material issue, the ruling, and the reasons for
                admitting the evidence; and
                (3) The court must exclude the evidence if its prob ative va lue is
                outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 40 4(b). A fou rth prereq uisite to admission is that the court find by

clear and convincing evid ence that the defendant committed the prior crime.

Tenn. R. Evid. 404 (Advisory Co mm ission C omm ents); State v. DuBose, 953

S.W.2d 649, 654 (Tenn. 1997); State v. Parton, 694 S.W.2d 299, 303 (Tenn.

1985). When a trial court substantially complies with the proced ural requ iremen ts

of the rule, its determination will not be overturned absent an abuse of discretion.

DuBose, 953 S.W .2d at 652. W here a cou rt fails to substantially comp ly with

these re quirem ents, the c ourt’s dec ision is afford ed no d eferenc e. Id.



        The record indicates that the trial court addressed the admissibility of the

audiotape during a jury out hearing. However, the trial court did not make an

express determination that the danger of unfair prejudice did not outweigh the

probative value of the evidence.3               Thus, our review is de novo without any

deference to the trial court’s decision.



        Desp ite the trial c ourt’s failure to comply with the procedural requirem ents

of the rule, we conclude that the trial court was correct when it ruled that the

audiotape was admissible under Rule 404(b). The trial court ruled that the

evidence about Ap pellan t’s prior d rug tra nsac tions w as ad miss ible be caus e it

was relevant to establishing Appellant’s intent to possess the marijuana for



        3
        In addition, the trial court did not make an express determination that there was clear and
convincing evidence that Appellant had committed the prior crimes. However, it appears that this was
never really an issue as Appellant never challenged the allegation that he had committed the prior crimes.

                                                 -7-
resale. The Te nnessee Suprem e Court has stated that evidence of other crimes

is admis sible whe n offered to prove inte nt. Parton, 694 S.W .2d at 303 . In

addition, this Court has held that a pattern of prior drug sales is probative of a

defen dant’s knowledge and intent to possess drugs for resale. State v. Johnny

Wayne Tillery, No. 01C01-9506-CC-00182, 1998 WL 148326, at *6 (Tenn. Crim.

App., Nashville, March 30, 1998). Indeed, evidence that Appellant had sold

drugs before and had established a set method of obtaining drugs indicates that

he took possession of the marijuana in this case with the intent of re selling it,

which is an elem ent of the o ffense. See Tenn. Code Ann. § 39-17-417(a)(4)

(Supp. 1998). The highly probative value of this evidence was not outweighed

by dang er of un fair preju dice. T hus, th e aud iotape was a dmis sible under R ule

404(b).



                           C. Right of Confrontation




      Appellant contends that playing the audiotape in the presence of the jury

deprived him of his right of confrontation under the Sixth an d Fourte enth

Ame ndme nts to the United States Constitution and Article I, Section 9 of the

Tennessee Constitution.      The right of confrontation provides two types of

protection for criminal defendants: the right to physically face the witnesses who

testify against the de fendant, and the right to cross-examine witnesses.

Penn sylvan ia v. Ritch ie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40,

53 (1987); State v. Middlebrooks, 840 S.W.2d 317, 332 (Tenn. 1992). In this

case, Appe llant wa s able to both physically face McKee and was able to cross-

examine him. Accordingly, we conclude that Appellant’s right of confrontation

was not viola ted by p laying th e aud iotape in the presence of the jury. See, e.g.,

                                         -8-
Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995) (holding that admission

of recorded recollection under Federal Rule of Evidence 803(5) does not violate

the right of con frontation); United States v. Sawyer, 607 F.2d 11 90, 1194 (7th Cir.

1979) (holding that admission of evidence under Federal Rule of Evidence 803(5)

does not violate right of confrontation when witness is available for cross-

exam ination). T his issue has no merit.



                                        III. SENTENCING




      Appellant contends that the trial court erred when it imposed a four year

sentence for the marijuana conviction.4 Specifically, Appellant claims that the trial

court erroneously imposed a longer sentence than he dese rved a nd im prope rly

denied alternative sentencing.



      “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of sentence, 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 co urt from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correc tness which acco mpa nies th e trial co urt’s ac tion is

conditioned upon the affirmative showing in the record that the trial cou rt

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enhan cing and mitigating factors, arg umen ts of coun sel, the appellant’s

      4
          Appellant does not challenge his sentence for the paraphernalia conviction.

                                                  -9-
statements, the nature and character of the offense, and the appellant’s potential

for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.               “The defendant has the burden of

demonstrating that the sentenc e is imprope r.” Id. Because the record in this

case indicates that the trial co urt failed to p roperly co nsider the sentencing

principles and all rele vant facts and c ircum stanc es, ou r review is de novo without

a presumption of correctness.



                               A. Length of Sentence




       Appellant claims that the trial court sentenced him to a longer term of

imprisonment than he deserves. We disagree.



       In imposing a four year senten ce for the Class D felony marijuana

possession conviction, the trial court failed to state whether it had considered any

of the mitigating factors of Tennessee Code Annotated section 40-35-113. In our

de novo revie w, we con clude that mitigating factor (1) applied because

Appe llant’s conduct neither caused nor threaten ed seriou s bodily injury . See

Tenn. Code Ann. § 40-35 -113( 1) (199 7). Ho weve r, we co nclud e that th is factor

is entitled to on ly minim al weight. See State v. Hoyt E dward Carro ll, No. 03C01-

9607-CC-00254, 1997 WL 457490 at *4 (Tenn. Crim App., Knoxville, Aug. 12,

1997) (holding that in cases involving drugs, mitigating factor (1 ) is entitle d to little

weight).



       The trial court found that enhancement factor (2) applied because

Appellant was a leader in an offense involving two or more criminal actors. See

                                           -10-
Tenn. Code Ann. § 4 0-35-11 4(2) (199 7). Appellant does not challenge the

application of this factor and we conclude that it was correctly applied.



      In our de novo review, we conclude that the trial court should have applied

enhancement factor (1) because Appellant had a previous history of criminal

behavior. See Tenn. C ode Ann . § 40-35-114 (1) (1997). Indee d, the record

indicates that McKee had purchased marijuana from Appellant on four occasions

and had transported marijuana for Appellant on one occasion in addition to the

incident at issue here. While it is true that Appellant was not convicted of these

prior offenses, section 40-35-114(1) does not limit consideration to convictions

only. See State v. Anthony Joel Allen, Jr., No. 01C01-9612-CC-00514, 1998 WL

235963 , at *4 (Tenn. C rim. App., Na shville, May 7, 1998 ).



      In short, two enhan ceme nt factors a nd only o ne mitiga ting factor a pply to

the marijuana conviction and the mitigating factor is entitled to little weight. Thus,

we hold that a sentence of four years is appropriate in this case.



                           B. Alternative Sentencing




      Appellant contends that the trial court erred by not granting his request for

alternative sentencing. We disagree.



      The Tennessee Criminal Sentencing Reform Act of 1989 recognizes that

the capacity of state prisons is limited and mandates that “convicted felons

comm itting the most severe offenses, possessing criminal histories evincing a

clear disregard for the laws and morals of society, and evincing failure of past

                                         -11-
efforts of rehabilitation shall be given first priority regarding sentencing involving

incarcer ation.” Tenn. Code Ann. § 40-35-102(5) (1997). A defendant who does

not qualify as such and who is an especially mitigated or stand ard offen der of a

Class C, D, or E felony is “pres ume d to be a favor able candidate for sentencing

options in the absence of evidence to the contrary.”            Tenn. Code Ann. §

40-35-102(6) (1997); Ashby, 823 S .W .2d at 1 69. Th is simp ly means that the trial

judge must presume such a defendant to be a favo rable can didate for sentencing

which does n ot involve inc arceratio n. State v. Byrd, 861 S.W .2d 377, 379–80

(Tenn. Crim. App. 1993).         However, this presumption is rebuttable and

incarceration may be ordered if the court is presented with evidence of the

following:

      (A) Confine ment is n ecessa ry to protec t society by restraining a defendant
      who ha s a long h istory of crim inal cond uct;
      (B) Confinem ent is necess ary to avoid depreciating the seriousness of the
      offense or confinement is pa rticularly suited to provide an e ffective
      deterrence to others likely to commit similar offenses; or
      (C) Measures less restrictive than confinement have freque ntly or re cently
      been a pplied un succes sfully to the de fendan t.

Tenn. Code Ann. § 4 0-35-10 3(1) (199 7); see also Ashby, 823 S.W.2d at 169.

In determining the appro priate sen tencing a lternative, a c ourt ma y also look to

evidence or information offered by the parties on the statutory enhancement and

mitigating factors. Tenn. C ode Ann . § 40-35-210 (b)(5) (1997). Las tly, a court

shou ld take in to acc ount th e pote ntial or la ck of p otentia l for a de fenda nt’s

rehabilitation or treatment when considering the appropriate sentencing

alternative. Tenn . Code An n. § 40-35-10 3(5) (1997).



      Appellant is a standard offender convicted of a Class D felony who does

not fall within the parameters of Tennessee Code Annotated section

40-35-102 (5).   Therefore, he is presumed to be a favorable candidate for

                                         -12-
alternative non-incarce rative se ntenc ing. Th e trial co urt con clude d that th is

presu mptio n had been rebutted because it found that confinement was necessary

to avoid depreciating the seriousness of the offe nse a nd co nfinem ent wo uld

provide an effective deterren ce to othe rs. W e agree that the presumption that

Appellant is a favo rable candidate for alternative sentencing has been rebutted.



        Regarding the seriousness of the offense, this Court has stated that “[i]n

order to deny an alternative sentence based on the seriousness of the offense,

‘the circumstances of the offense as committed mu st be esp ecially violent,

horrifyin g, shocking, reprehensible, offensive, or otherwise of an excessive or

exaggerated degree,’ and the nature of the offense must outw eigh all factors

favoring a sentence other than confineme nt.” State v. Bingham, 910 S.W.2d 448,

454 (Tenn. Crim. App. 1995) (citation om itted). Although importing twenty-one

pounds of marijuana into the State of Tennessee is certainly a serious matter, we

are unable to conclude that the circumstances of this offense meet this standard.



        Regarding deterrence, the general rule is that “[b]efore a trial court can

deny alternative sentencing on the ground of dete rrence, there must be some

evidence contained in the record that the sentence imposed will have a deterrent

effect within the jurisdiction.” Id. at 455 . The S tate’s e videnc e that A ppella nt’s

sentence would h ave a de terrent effect on the drug problem in McEwen and

Hump hreys Coun ty was m inimal at b est. 5 However, the State was not required

to offer proof of deterrence in this case beca use th is Cou rt has h eld tha t the sa le

        5
          The State’s only evidence about the deterrent effect of Appellant’s sentence wa s a conclusory
statement by Chief Ethridge that McEwen had a serious drug problem and that more drug cases from
McEwen were presented to a grand jury than from any other part of Humphreys County. Chief Ethridge
adm itted, howe ver, that the drug pro blem in McE wen wa s no m ore serio us than it was in m any other p arts
of Ten nesse e and the Unites S tates as a whole. C hief Ethridg e also ad mitted th at he wa s not fam iliar with
the e xten t of the drug prob lem in othe r part s of H um phre ys Co unty.

                                                    -13-
or use of narcotics is “deterrable per se,” even in the absenc e of a record

demonstrating a need for deterre nce. State v. Dykes, 803 S.W.2d 250, 260

(Tenn. Crim . App. 1 990). T hus, th e trial court properly denied Appellant’s request

for alternative sentencing based on the nee d to deter dru g related offenses . See

id. See also State v. Keith A. Jackson, No. 02C01-9705-CR-00193, 1998 WL

148330, at *3 (Tenn. Crim. App., Jackson, April 1, 1998) (up holding denial of

probation because sale of narcotics is dete rrable pe r se); State v. Timothy S.

Myrick, No. 02C 01-951 2-CC -00368 , 1997 W L 1128 8, at *2–3 (Tenn . Crim. A pp.,

Jackson, Jan. 15, 1997) (upholding denial of alternative sentencing beca use s ale

of narco tics is deterra ble per se ). This issu e has n o merit.



       Accordingly, the judgment of the trial court is AFFIRMED.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




                                          -14-
