         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         MARCH 1999 SESSION
                                                        July 1, 1999

                                                  Cecil W. Crowson
                                                Appellate Court Clerk
STATE OF TENNESSEE,          *     C.C.A. #01C01-9712-CC-00589

            Appellee,        *     RUTHERFORD COUNTY

V.                           *     Honorable J. S. Daniel, Judge

DARRICK WATKINS,             *     (Sale of Cocaine)

            Appellant.       *




FOR THE APPELLANT:               FOR THE APPELLEE:

GUY R. DOTSON, JR.               JOHN KNOX WALKUP
102 South Maple Street           Attorney General & Reporter
Murfreesboro, TN 37130
                                 MARVIN E. CLEMENTS, JR.
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 WILLIAM C. WHITESELL, JR.
                                 District Attorney General

                                 PAUL A. HOLCOMBE, III
                                 Assistant District Attorney General
                                 20 North Public Square, Suite 303
                                 Murfreesboro, TN 37130




OPINION FILED: ___________________



AFFIRMED



JOHN EVERETT WILLIAMS,
Judge
                                     OPINION

       The defendant, Darrick Watkins, appeals from a Rutherford County jury

verdict convicting him of the sale of less than .5 grams of cocaine, a Class C

felony. See Tenn. Code Ann. § 39-17-417(a), (c)(2). The trial judge sentenced

the defendant to eleven years in the Tennessee Department of Correction, to be

served consecutively to sentences on two prior convictions for the sale of

controlled substances. On this appeal, the defendant argues (1) that the

evidence at trial was insufficient to support the jury’s finding of guilt and (2) that

the trial court erred in denying his motion for a new trial based on the state’s

allegedly discriminatory use of a peremptory challenge during jury selection. The

state cross-appeals, arguing that the trial court failed to accord sufficient weight

to certain enhancement factors and, therefore, that the defendant’s sentence

does not appropriately reflect the seriousness of his offense. We AFFIRM the

judgment of the trial court in all respects.



                                   BACKGROUND

       As part of an undercover drug sting, the Smyrna Police Department paid

an informant, Terry Harrison, to purchase cocaine from the defendant. Prior to

the transaction, Detective Robert Jacobs met with Harrison and searched her car

and person. Jacobs then outfitted Harrison with an audio transmitter and

instructed her to contact the defendant and attempt to purchase crack cocaine

from him. Jacobs followed Harrison to her meeting with the defendant, where

she conducted the purchase as planned. Although Jacobs was unable to

maintain visual surveillance of the transaction, he did hear and record the audio

transmission of the transaction. Immediately following the transaction, Jacobs

followed Harrison to a prearranged meeting point, keeping her in sight the entire

time. Harrison then delivered her purchase to Jacobs. The purchased




                                          -2-
substance was submitted to the Tennessee Bureau of Investigation and, after

testing, was determined to be .2 grams of cocaine.



       At the defendant’s trial, the state introduced the audio recording of the

transaction between Harrison and the defendant. Harrison then identified the

defendant, testified to the transaction with him, and identified his voice on the

recording.



       The defense presented two witnesses who testified that they were familiar

with the defendant’s voice and that the voice on the recording was not his.

Rather, each of these witnesses asserted that the recorded voice was that of the

other witness.



                          SUFFICIENCY OF EVIDENCE

       The defendant first asserts that the evidence at trial was insufficient to

support his conviction. When a defendant challenges the sufficiency of the

evidence, this Court must determine whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of a crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985); Tenn. R. App. P. 13(e). The appellee is entitled to the strongest

legitimate view of the evidence and to all reasonable inferences that may be

drawn therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state



                                         -3-
accredits the testimony of the state’s witnesses and resolves all conflicts in favor

of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Moreover, a guilty verdict removes the presumption of innocence enjoyed by

defendants at trial and replaces it with a presumption of guilt. See State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the

sufficiency of the evidence carries the burden of illustrating to this Court why the

evidence is insufficient to support the verdict. See State v. Freeman, 943

S.W.2d 25, 29 (Tenn. Crim. App. 1996).



       The defendant has not carried this burden. The defendant asserts that

the state failed to sufficiently identify him as the person who sold cocaine to

Harrison. He relies primarily on the testimony of two defense witnesses that his

was not the voice on the recording of the transaction, and he attempts to

discredit Harrison’s testimony to the contrary.



       The resolution of conflicting evidence and the credibility of witnesses is a

matter for the trier of fact; we will not revisit that issue here. The state presented

competent direct evidence as to every element of the defendant’s offense, and

the jury was entitled to credit that evidence. This issue is without merit.



                              BATSON CHALLENGE

       The defendant next argues that the trial court erred in failing to grant a

new trial based on the state’s allegedly discriminatory use of a peremptory

challenge. During voir dire of the jury, the state asked a potential juror, Annie

Mae Gregory, whether, if the state proved its case, she could vote guilty knowing

that the defendant could go to jail for up to fifteen years. Gregory originally

replied, “Well, if he was going and learning some sense to leave it alone and go

to work and make honest money.” The state then asked a series of questions



                                         -4-
illustrating that no one could know whether incarceration would rehabilitate the

defendant and again asked Gregory whether she could vote guilty if the state

proved its case. Gregory answered, “Maybe.” On the state’s third inquiry,

Gregory stated that she could convict the defendant if the state proved its case.



        With its fifth peremptory challenge, the state struck Gregory. The defense

immediately objected, pointing out that the defendant is African-American and

that Gregory was the only African-American member of the venire; impliedly

asserting that the state’s challenge was racially motivated. To this objection, the

state responded as follows:

        GENERAL HOLCOMBE: First of all, I want to say for the record I
        resent [defense counsel’s] implication, and that I’m even up here.
        I’m going to point out to the court two reasons [for the challenge to
        Gregory]. Number one–and they’re related. I watched the way she
        answered my questions when I finally could hear her answer.1 Her
        best answer originally was that she maybe could vote guilty. And I
        noticed the look on her face as she looked over directly at [the
        defendant] while she made that answer.

        And that brings up my second reason. She has a child about his
        age. In fact, she has two. One 22 and one 19. And I believe that
        has something to do with it. Her mother instinct as she looks at
        him sitting for trial there.


(footnote added). Following this explanation, the trial court overruled the

defense’s objection, specifically finding that the state’s nonracial explanation was

justified by responses in the record.



        Following his conviction, the defendant renewed his assertion that the

state’s challenge of Gregory was racially motivated in his motion for a new trial.

In response, the state reiterated that its challenge was based on Gregory’s

hesitance to state that she could convict the defendant, her body language, and

her having children near the defendant’s age. After taking the matter under



        1
          The state had twice needed to ask Gregory to repeat her response to a question of
whethe r any of the ju rors had person ally seen the effects o f cocain e use.

                                              -5-
advisement, the trial court found that the defense had established a prima facie

case of purposeful discrimination. However, the court further found that the

state’s race-neutral explanation and an examination of all the relevant facts

satisfactorily indicated a nondiscriminatory basis for the state’s challenge.



        In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme

Court held that the state’s use of a peremptory challenge to intentionally exclude

jurors of the defendant’s race violates the defendant’s Fourteenth Amendment

right to equal protection.2 Under Batson, a prima facie case of purposeful

discrimination may be established upon a showing that the defendant was a

member of a “cognizable racial group,” that the challenged juror is a member of

the defendant’s race,3 and that all relevant circumstances raise an inference that

the state challenged the potential juror because of his or her race. See id. at 96.

If the defendant establishes a prima facie case, then the state must show a race-

neutral reason for the challenge. See id. at 97. The state’s explanation,

however, need not rise to the level justifying a challenge for cause. In

determining the issue, the trial court examines the “totality of the relevant facts.”

State v. Bell, 759 S.W.2d 651, 653 (Tenn. 1988). Such facts may include the

number of members of the defendant’s race that were excluded by the state, but

see State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (cautioning that

numbers alone are not conclusive); whether the state failed to exhaust its

peremptory challenges while leaving members of the defendant’s race on the

panel, see State v. Butler, 795 S.W.2d 680, 687 (Tenn. Crim. App. 1990); or

whether the challenged venire member exhibited or acknowledged some race-

neutral attitude or relationship that would justify the state’s fearing his or her



        2
          In Georgia v. McCollum , 505 U.S. 42 (1992), the Supreme Court extended Batson,
mak ing the de fendan t's perem ptory challen ges su bject to eq ual protec tion scrutin y as well.

        3
          In Pow ers v . Ohio , 449 U.S. 400 (1991), the Court deleted the requirement that the
defend ant and th e exclud ed poten tial juror be of the sam e race.

                                                  -6-
antipathy to the prosecution, see State v. Ellison, 841 S.W.2d 824, 827 (Tenn.

1992); Brown, 915 S.W.2d at 9; Butler, 795 S.W.2d at 687. Nevertheless, the

exercise of "even one peremptory challenge in a purposefully discriminatory

manner would violate equal protection." Ellison, 841 S.W.2d at 827.



       This Court reviews the findings of a trial court relative to a Batson

challenge under an abuse of discretion standard. That is, we “cannot substitute

our judgment for that of the trial court or declare error absent a finding that the

trial judge abused his or her discretion.” State v. Matthew L. Moates, No.

03C01-9610-CR-00383, (Tenn. Crim. App. filed June 24, 1997, at Knoxville);

State v. Jerry Blaylock, No. 02C01-9602-CC-00069 (Tenn. Crim. App. filed Aug.

21, 1997, at Jackson).



       We find no abuse of discretion in the trial court's conclusion that the

totality of relevant facts do not indicate purposeful discrimination. Indeed, in

accordance with the cited precedent, the state’s challenge of the only African-

American potential juror does not, standing alone, establish even a prima facie

showing of purposeful discrimination. See Batson, 476 U.S at 96; Bell, 759

S.W.2d at 653. Rather, the objecting party must also demonstrate that the

relevant circumstances raise an inference that the potential juror was challenged

because of his or her race. See Batson, 476 U.S at 96. The record reflects no

circumstances indicative of a race-based motive for the state’s challenge. We,

therefore, respectfully disagree with the trial court’s conclusion that the

defendant established a prima facie case. This aside, however, we find no

abuse of discretion in the trial court’s ultimate conclusions that the state’s race-

neutral explanation of its challenge is supported by the record and that the




                                         -7-
totality of relevant facts do not indicate purposeful discrimination. This issue is

without merit.



                        SENTENCING--CROSS APPEAL

       The state cross-appeals, challenging the severity of the imposed

sentence. When an appellant challenges the length 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). 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

appellant carries the burden of showing that the sentence is improper. See

Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,

929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).



       The trial court sentenced the defendant as a Range III persistent offender

to eleven years confinement. The sale of less than .5 grams of cocaine is a

Class C felony, carrying a Range III sentence of ten to fifteen years. See Tenn.

Code Ann. §§ 39-17-417(a), (c)(2); 40-35-112(c). The presumptive sentence for

a Class C felony is the minimum sentence in the range, absent enhancement or

mitigating factors. See Tenn. Code Ann. § 40-35-210(c). At the defendant’s

sentencing hearing, the trial court found applicable the following three

enhancement factors:

       The defendant has a previous history of criminal convictions or
       criminal behavior in addition to those necessary to establish the
       appropriate range;

       The defendant has a previous history of unwillingness to comply
       with the conditions of a sentence involving release in the
       community;



                                         -8-
       The felony was committed while on [probation] . . . from a prior
       felony conviction.

Tenn. Code Ann. § 40-35-114(1), (8), (13). The defense presented no mitigating

factors, and the trial court found none applicable. Based on these findings, the

court enhanced the defendant’s sentence from the presumptive sentence of ten

years to eleven years.



       The state does not contest any of the trial court’s findings except to

challenge the weight that the trial court accorded the stated enhancements.

Arguing that these factors warrant a sentence of at least mid-point in the range,

the state notes that one of the purposes of the 1989 Sentencing Reform Act is to

restrain defendants who have a lengthy history of criminal conduct and asserts

that, in the present case, “a sentence near the minimum in the range is not

entirely consistent with that purpose.”



       We initially observe that the record reflects ample consideration of all

relevant sentencing principles. Therefore, the trial court’s findings are

accompanied by a presumption of correctness. Moreover, the weight to be

accorded enhancement or mitigating factors is left to the sound discretion of the

trial judge so long as it complies with the purposes and principles of sentencing

and the court's findings are adequately supported by the record. See T.C.A. §

40-35-210, sentencing comm’n cmts; State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991); State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986). Our review

reflects that the trial court followed the statutory sentencing procedure, imposed

a lawful sentence, and made findings of fact adequately supported by the record.

Thus, we may not modify the sentence even if we would have preferred a

different result. See State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App.

1991). This issue is without merit.




                                          -9-
                               CONCLUSION

     The judgment of the trial court is, in all respects, AFFIRMED.




                                            _____________________________
                                            JOHN EVERETT W ILLIAMS, Judge




CONCUR:




____________________________
DAVID H. WELLES, Judge




_____________________________
JOE G. RILEY, Judge




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