          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON
                                                                  FILED
                            APRIL 1998 SESSION
                                                                     June 3, 1998

                                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,                    )                          Appellate C ourt Clerk
                                       )    NO. 02C01-9707-CC-00267
      Appellee,                        )
                                       )    DECATUR COUNTY
VS.                                    )
                                       )    HON. C. CREED McGINLEY,
WILLIAM WAYLON JACKSON,                )    JUDGE
 a.k.a. BILL JACKSON,                  )
                                       )    (Sale of Marijuana)
      Appellant.                       )



FOR THE APPELLANT:                          FOR THE APPELLEE:

KATHLEEN L. CALDWELL                        JOHN KNOX WALKUP
Taylor, Halliburton, Ledbetter &            Attorney General and Reporter
Caldwell
44 N. Second Street, Suite 200              GEORGIA BLYTHE FELNER
Memphis, TN 38103-2220                      Assistant Attorney General
                                            Cordell Hull Building, 2nd Floor
JOSEPH L. PATTERSON                         425 Fifth Avenue North
(Trial Only)                                Nashville, TN 37243-0493
225 W. Baltimore Street
Jackson, TN 38301-6137                      G. ROBERT RADFORD
                                            District Attorney General

                                            JOHN W. OVERTON, JR.
                                            Assistant District Attorney General
                                            P.O. Box 484
                                            Savannah, TN 38372-0484

                                            JERRY W. WALLACE
                                            Assistant District Attorney General
                                            P.O. Box 637
                                            Parsons, TN 38363-0637




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                        OPINION



       The defendant, William Waylon Jackson, was convicted by a Decatur County

jury of three (3) counts of the sale of marijuana over one-half (½) ounce, Class E

felonies. The trial court sentenced him as a Range II offender to concurrent terms

of three (3) years for each count and denied alternative sentencing. On appeal,

defendant contends that the trial court erred in denying his motion to dismiss the

indictment as it violated the mandatory joinder provision of Tenn. R. Crim. P. 8(a).

He further argues that the trial court imposed excessive sentences and improperly

denied alternative sentencing. We affirm the judgment of the trial court.



                                         FACTS



       Although defendant does not challenge the sufficiency of the convicting

evidence, a brief summary of the relevant facts is appropriate. In the fall of 1995,

Gary Azbill was working with the Criminal Investigation Division of the Tennessee

Highway Patrol. Jerry Maness, who had criminal charges pending at that time, was

assisting Azbill in making undercover purchases of stolen goods and vehicles.

Maness and defendant had been acquainted for a number of years, and Maness

learned that defendant was involved in the sale of marijuana. At Azbill’s request,

Maness contacted defendant to “set up a buy.”

       On three separate occasions, defendant sold Azbill and/or Maness one-

quarter (1/4) of a pound of marijuana for $550. All of the sales occurred at Maness’

residence in Decatur County. On two of the occasions, Azbill was able to make an

audio tape of the transaction.1 Azbill was present during the first two sales and

monitored the third through an audio transmission.2


       1
         Azbill was not able to record the first sale because the recording device was
inadvertently turned off.
       2
        On the third occasion, defendant would not sell to Azbill for fear of being caught
by the police. Apparently, defendant heard a rumor that the law enforcement authorities
“were trying to bust a school teacher for selling marijuana.” At the time of his arrest,
defendant was an elementary school teacher. Azbill testified at trial that he was hiding in

                                            2
       Defendant presented an entrapment defense at trial. He testified that in the

spring of 1995, Maness approached several people, including himself, and

“propositioned” them to grow some marijuana plants. No one accepted Maness’

offer, and Maness began pressuring defendant to grow the plants.                  Maness

persisted for some time, and defendant finally agreed.

       Defendant testified that he planted the marijuana on the side of a road

several miles from his property, but took no further action to cultivate the plants’

growth. Although defendant admittedly picked the marijuana, dried it, packaged it

and eventually delivered it to Maness, he claimed that he did so only at Maness’

request. He denied selling the marijuana to Maness or Azbill and claimed that he

never received money from either of them.

       Marty Stewart also testified for the defense at trial. He stated that he was

present when Maness “propositioned” several people to grow the marijuana.

       In defendant’s first trial, the jury was not able to reach a verdict. Defendant

was then re-indicted and convicted of three (3) counts of the sale of marijuana over

one-half (½) ounce. He was sentenced as a Range II offender to concurrent terms

of three (3) years for each count. The trial court denied alternative sentencing.

From his convictions and sentences, defendant now brings this appeal.



                               MANDATORY JOINDER



       In his first issue, defendant argues that the state violated Tenn. R. Crim. P.

8(a) by failing to join the delivery of marijuana counts with the sale of marijuana

counts in the first indictment.      He contends that he was initially charged in

Indictment No. 411 with three (3) counts of selling marijuana. Following the mistrial,

the state re-indicted him with three (3) counts of delivering and three (3) counts of

selling marijuana. Defendant maintains that the delivery counts were not included

in the original indictment. Because these offenses arose out of the same conduct,




Maness’ garage during the the third transaction and was able to see much of what transpired
during that particular sale.

                                            3
he insists that the state was required to join the delivery counts in the prior

indictment. Therefore, he asserts that the trial court should have granted his motion

to dismiss the subsequent indictment.

       We initially note that defendant has failed to include the prior indictment,

Indictment No. 411, as part of the record on appeal. It is the appellant’s duty to

have prepared an adequate record in order to allow a meaningful review on appeal.

Tenn. R. App. P. 24; State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.

Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Carey, 914 S.W.2d 93, 97

(Tenn. Crim. App. 1995); State v. Goodwin, 909 S.W.2d 35, 43 (Tenn. Crim. App.

1995); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). When no

evidence is preserved in the record for review, we are precluded from considering

the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). This

Court is not at liberty to speculate as to what charges were contained in the

previous indictment. Therefore, the issue is waived.

       Furthermore, this issue was not included in the motion for new trial. The

issue is waived for this reason as well. Tenn. R. App. P. 3(e); see State v. Walker,

910 S.W.2d 381, 386 (Tenn. 1995).

       Moreover, we consider any possible error to be harmless, at best. Defendant

complains of the additional counts of the indictment charging him with the delivery

of marijuana. However, defendant was convicted of the sale of marijuana. He

concedes that the selling counts were included in the original indictment. Therefore,

defendant was not prejudiced by this alleged error.

       This issue is without merit.



                            LENGTH OF SENTENCE



       In his next issue, defendant claims that the trial court imposed excessive

sentences.    More specifically, he argues that the trial court misapplied one

enhancement factor and failed to apply two mitigating factors.

                                         A.



                                         4
       This Court’s review of the sentence imposed by the trial court is de novo with

a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge

considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial court fails to comply

with the statutory directives, there is no presumption of correctness and our review

is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is

improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments.

In conducting our review, we are required, pursuant to Tenn. Code Ann. § 40-35-

210, to consider the following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing
       hearing; (2) [t]he presentence report; (3) [t]he principles of sentencing
       and arguments as to sentencing alternatives; (4) [t]he nature and
       characteristics of the criminal conduct involved; (5) [e]vidence and
       information offered by the parties on the enhancement and mitigating
       factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statement the
       defendant wishes to make in his own behalf about sentencing.

       If no mitigating or enhancement factors for sentencing are present, Tenn.

Code Ann. § 40-35-210(c) provides that the presumptive sentence shall be the

minimum sentence within the applicable range. See State v. Fletcher, 805 S.W.2d

785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court

should start at the minimum sentence, enhance the minimum sentence within the

range for enhancement factors and then reduce the sentence within the range for

the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for

each factor is prescribed by the statute, as the weight given to each factor is left to

the discretion of the trial court as long as the trial court complies with the purposes

and principles of the sentencing act and its findings are supported by the record.

State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845,

848 (Tenn. Crim. App. 1997); State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.

App. 1995); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

Nevertheless, should there be no mitigating factors, but enhancement factors are

present, a trial court may set the sentence above the minimum within the range.



                                          5
Tenn. Code Ann. § 40-35-210(d); see Manning v. State, 883 S.W.2d 635, 638

(Tenn. Crim. App. 1994).

                                         B.

       Defendant was convicted of three (3) counts of the sale of marijuana, Class

E felonies. This offense carried a range of punishment of two (2) to four (4) years

for a Range II, Multiple Offender. In imposing defendant’s sentence, the trial court

found as an enhancement factor that defendant had a previous history of

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

community. Tenn. Code Ann. § 40-35-114(8). Defendant proposed two mitigating

factors, (1) that defendant’s conduct neither caused nor threatened serious bodily

injury, Tenn. Code Ann. § 40-35-113(1); and (2) that he was “enticed” into growing

the marijuana, Tenn. Code Ann. § 40-35-113(13). The trial court rejected these

factors and found that no other mitigating factors were applicable. The trial court

then imposed concurrent sentences of three (3) years for each conviction.

                                         C.

       Defendant argues that the trial court erroneously found that he had a

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

into the community. Tenn. Code Ann. § 40-35-114(8). The pre-sentence report

reveals that defendant was placed on four (4) years probation following a robbery

conviction in Alabama in 1981. Approximately three (3) years later, his probation

was revoked as a result of a subsequent conviction. The trial court properly applied

this enhancement factor.

                                         D.

       Defendant also argues that the trial court should have applied mitigating

factor number 1, that his conduct neither caused nor threatened serious bodily

injury. Tenn. Code Ann. § 40-35-113(1). Assuming the trial court should have

found this factor applicable, this factor is entitled to little weight. State v. Hoyt

Edward Carroll, C.C.A. No. 03C01-9607-CC-00254, Hawkins County (Tenn. Crim.

App. filed August 12, 1997, at Knoxville).

                                         E.


                                         6
       Defendant further claims that the trial court should have applied as a

mitigating factor Tenn. Code Ann. § 40-35-113(13), “[a]ny other factor consistent

with the purposes of this chapter.” He claims that the trial court should have

considered that he was “entrapped” as a mitigating factor.

       Defendant testified at trial that Maness pressured him into growing the

marijuana plants. He claimed that he was not “selling” the marijuana to Maness or

Azbill and never received any money. However, he acknowledged that he picked

the marijuana, dried it, packaged it, and delivered it to Maness.

       Azbill testified that he observed the transactions and on one occasion

actually placed the money in defendant’s hands. Furthermore, the audio tapes of

the transactions do not support defendant’s entrapment theory and actually show

defendant’s familiarity with marijuana.3 Moreover, the jury chose not to accept the

entrapment defense as evidenced by the guilty verdicts.

       The trial court rejected the defense at sentencing and refused to consider it

in mitigation. Under the circumstances, we find that the trial court properly declined

to apply the entrapment defense as a mitigating factor under Tenn. Code Ann. § 40-

35-113(13).

                                          F.

       We find that the trial court properly considered the sentencing principles and

all relevant facts and circumstances. Although Tenn. Code Ann. § 40-35-113(1)

should have been considered as a mitigating factor, it would be entitled to very little

weight. The three (3) year Range II sentence for each conviction, which was one

(1) year above the minimum, was proper.

       This issue has no merit.



                           ALTERNATIVE SENTENCING




       3
         On one of the tapes, defendant tells Azbill that the package contains a lot of
“shake,” so defendant added extra marijuana. “Shake” was defined as the crumbled leaves
in the bottom of the package which is considered to be the less desirable part of the
marijuana. Defendant also referred to the marijuana as “my harvest” and told Maness that
he was saving the seeds to plant the following year.

                                           7
       In his final issue, defendant contends that the trial court erred in denying

alternative sentencing. He claims that he is statutorily presumed to be a favorable

candidate for alternative sentencing because he was convicted of Class E felonies.

He maintains that the state did not overcome this presumption; therefore, he is

entitled to alternative sentencing.

                                         A.

       An especially mitigated or standard offender convicted of a Class C, D or E

felony is presumed to be a favorable candidate for alternative sentencing in the

absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6). Because

defendant was sentenced as a Range II offender, he is not statutorily entitled to a

presumption that he is a favorable candidate for alternative sentencing.

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn.

Crim. App. 1997).

       A court may also consider the mitigating and enhancing factors set forth in

Tenn. Code Ann. §§ 40-35-113 and 114 as they are relevant to the § 40-35-103

considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston, 938 S.W.2d

435, 438 (Tenn. Crim. App. 1996). Additionally, a court should consider the

defendant’s potential or lack of potential for rehabilitation when determining if an

alternative sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State

v. Boston, 938 S.W.2d at 438. The defendant's lack of credibility is also an

appropriate consideration and reflects on a defendant's potential for rehabilitation.

State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994).

                                         B.

       In determining that defendant was not a proper candidate for alternative


                                         8
sentencing, the trial court considered that defendant had two prior felony

convictions. Measures less restrictive than confinement have proven unsuccessful

for this defendant in that he had a previous probation revocation as a result of a

subsequent conviction.       Furthermore, the trial court found that defendant’s

testimony at trial and sentencing was less than candid. Lack of credibility is an

appropriate consideration and reflects on a defendant's potential for rehabilitation.

State v. Dowdy, 894 S.W.2d at 306. Moreover, in light of the amount of money and

quantity of marijuana involved in the sales, the trial court determined that alternative

sentencing would depreciate the seriousness of the offenses committed.

                                          C.

       The trial court properly considered the relevant facts and circumstances, as

well as the sentencing principles.      The trial court’s findings are entitled to a

presumption of correctness. We, therefore, will not disturb the trial court’s denial

of alternative sentencing.

       This issue is without merit.



                                   CONCLUSION



       For the foregoing reasons, the judgment of the trial court is affirmed.




                                                   JOE G. RILEY, JUDGE



CONCUR:




DAVID G. HAYES, JUDGE




                                           9
WILLIAM M. BARKER, JUDGE




                           10
