            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs November 17, 2004

               STATE OF TENNESSEE v. DAVID SEVER WATKINS

                         Appeal from the Criminal Court for White County
                             No. CR1172      Leon Burns, Jr., Judge



                      No. M2003-01488-CCA-R3-CD - Filed February 9, 2005


The defendant, David Sever Watkins,1 was convicted by a White County jury of sale of .5 grams or
more of a Schedule II controlled substance, cocaine, and was sentenced as a Range I, standard
offender to ten years in the Department of Correction. On appeal, he asserts: (1) the evidence was
insufficient to sustain his conviction; and (2) the trial court erred in imposing a ten-year sentence.
Following our review, we affirm the conviction and the sentence.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS T.
WOODALL, JJ., joined.

David N. Brady, District Public Defender; Joe L. Finley, Jr. and John B. Nisbet, III, Assistant Public
Defenders, for the appellant, David Sever Watkins.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; William E. Gibson, District Attorney General; and John A. Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                   OPINION

                                                    FACTS

       Tennessee Bureau of Investigation (“TBI”) Special Agent Dan Ogle testified that on May 22,
2002, while working undercover narcotics in White and Putnam Counties, he went to White County
to “purchase crack cocaine from [the defendant].” After contacting the defendant by cell phone,
Agent Ogle met him in the parking lot of a Shell gas station off Highway 111. The defendant pulled
up alongside Agent Ogle’s car and asked him if he was in law enforcement. When Agent Ogle said


        1
         W e note that the correct spelling of the defendant’s middle name is “Sevier.” However, we have listed the
defendant’s name as it appears in the indictment.
“no,” the defendant got into Agent Ogle’s car and they began discussing drug transactions. Agent
Ogle told the defendant that he wanted an “eight ball,” which he explained in court was a common
term for approximately 3.2 to 3.5 grams of crack cocaine. The defendant told him that he could get
an eight ball for $200 and that future buys might be cheaper. The defendant then called his “source,”
whom he told to meet them at a Chevron gas station. Agent Ogle and the defendant drove to the
Chevron, where a black Monte Carlo vehicle occupied by two African-American females pulled up.
The defendant got out and approached their vehicle with a set of digital scales he had borrowed from
Agent Ogle. After getting into the Monte Carlo and conducting a transaction, the defendant returned
to Agent Ogle’s vehicle and showed him the crack cocaine. They then returned to the Shell station,
where the defendant gave Agent Ogle “the entire chunk of crack cocaine.” Agent Ogle had difficulty
breaking the rock of cocaine, so the defendant retrieved from his vehicle a screw which they used
to break off a chunk of the cocaine. After discussing future drug transactions, the defendant took
the remainder of the crack cocaine and left. Agent Ogle stated the entire transaction took a “little
over an hour.” Agent Ogle then sealed the crack cocaine he had purchased in a plastic bag and gave
it to his backup, Agent Danny Espinosa, to take to the crime lab. Agent Espinosa had been in a
vehicle “down the road,” monitoring the conversations between the defendant and Agent Ogle on
a recording device known as a “Kell set.”

        TBI Agent Danny Espinosa testified that on May 22, 2002, he was employed with the Putnam
County Sheriff’s Department and was assigned to the Thirteenth Judicial Drug Task Force. On that
date, he was working as Agent Ogle’s “cover person,” following in a separate vehicle and operating
the Kell set. Espinosa took the crack cocaine from Agent Ogle and then delivered it to the TBI
Crime Lab in Nashville on May 28.

        Agent Dianne Smith testified that she had been employed with the TBI Crime Lab for sixteen
years and that her job is to “receive evidence from the various law enforcement agencies of the State
of Tennessee” for analysis “to determine if it contains a controlled substance.” During those sixteen
years, she had run “thousands” of tests like the one involved in this case. She analyzed the substance
delivered by Agent Espinosa using “ultraviolet spectrophotometry, infrared spectrophotometry, mass
spectrophotometry, and . . . gas chromatography” tests. Her analysis revealed that the “rock like
substance,” which weighed 3.87 grams, was cocaine. On cross-examination, she explained that it
was “not standard operating procedure” to perform quantitative analysis to determine if a substance
was “pure cocaine.” Instead, the results of her tests were “strictly qualitative.” She stated that the
substance in the instant case “may not have been pure” cocaine. She testified that had she taken a
small sample from either end of the rock, it would have tested positive for cocaine. Finally, she
stated that the cocaine base in the sample she tested “wasn’t 100 percent cocaine but I don’t know
if it was 80 or 90 because I did not check the purity.”

       The defendant elected not to testify.




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                                              ANALYSIS

                                    I. Sufficiency of the Evidence

        The defendant asserts that because the State did not prove that the controlled substance he
sold contained “pure” cocaine of at least .5 grams, the evidence was insufficient to convict him of
Class B felony sale of a Schedule II controlled substance pursuant to Tennessee Code Annotated
section 39-17-417(c)(1). We disagree.

         Where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560,
573 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier
of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992);
State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues are
resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
“A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493
S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

                        This well-settled rule rests on a sound foundation. The trial
                judge and the jury see the witnesses face to face, hear their testimony
                and observe their demeanor on the stand. Thus the trial judge and
                jury are the primary instrumentality of justice to determine the weight
                and credibility to be given to the testimony of witnesses. In the trial
                forum alone is there human atmosphere and the totality of the
                evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        Our opinion in State v. Howard Kareem Atkins, No. 02C01-9805-CC-00155, 1999 WL
241870 (Tenn. Crim. App. Apr. 26, 1999), is exactly on point and controlling for the issue raised by
the defendant:

                       The defendant also complains that the indictment charges him
                with selling cocaine weighing .5 grams or more, but the evidence


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               established only that he sold a substance containing cocaine weighing
               .5 grams or more and it was not established how much the pure
               cocaine weighed. The defendant labels this as a sufficiency of the
               evidence issue. This is not a sufficiency of the evidence issue
               because in order to establish a Class B felony under § 39-17-417(c),
               the State need not prove that the pure cocaine in the contraband
               substance weighed .5 grams or more, so long as the weight of the
               cocaine combined with the other substances totaled .5 grams or more.
               See State v. Alcorn, 741 S.W.2d 135, 138 (Tenn. Crim. App. 1987).
               Thus, the State proved what § 39-17-417(c)(1) required it to prove,
               that is, that the substance containing cocaine that was sold by the
               defendant weighed .5 grams or more.

                       The defendant's true point of contention is that the indictment
               is insufficient because it alleges he sold cocaine weighing .5 grams or
               more, rather than a substance containing cocaine weighing .5 grams
               or more, as § 39-17-417(c)(1) provides. The indictment, however,
               complies with constitutional protections, including that of notice to
               the accused of the crime charged. Moreover, the indictment complies
               with the requirements delineated in § 40-13-202. Thus, it is sufficient
               to support the defendant's conviction.

Id. at **1-2. The defendant points to no authority, nor do we know of any, for the proposition that
only the weight of the “pure” cocaine in a crack cocaine mixture is relevant to the determination of
whether the amount sold was more or less than .5 grams. As pointed out clearly in Howard Kareem
Atkins, “the State need not prove that the pure cocaine in the contraband substance weighed .5 grams
or more, so long as the weight of the cocaine combined with the other substances totaled .5 grams
or more.” Id. at *1. The plain language of the statute states that “if the amount involved is point five
(.5) grams or more of any substance containing cocaine,” then the offense is a Class B felony. Tenn.
Code Ann. § 39-17-417(c)(1) (emphasis added). Therefore, the defendant’s contention is without
merit.

        Like the defendant in Howard Kareem Atkins, the defendant in the present appeal, at the
motion for new trial hearing conducted at the same time as the sentencing hearing, argued that the
indictment was insufficient because it only alleged that he sold cocaine, rather than a substance
containing cocaine. Having reviewed the indictment in the present case, we conclude that it
complies with all the requirements of Title 40, Chapter 13, Part 2 of Tennessee Code Annotated, as
well as all other protections guaranteed by the Tennessee Constitution. The defendant was fully put
on notice of the crime with which he was charged.

       Agent Ogle testified that he bought an “eight ball” rock of crack cocaine from the defendant
for $200. Agent Espinosa testified that he delivered the crack cocaine to the TBI Crime Lab. Agent
Smith testified that she analyzed the contraband substance, which tested positive as cocaine and


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weighed 3.87 grams. Based upon the testimony of these witnesses, we conclude the proof was
sufficient to establish the defendant’s guilt beyond a reasonable doubt.

                                                  II. Sentencing

      The defendant also challenges his ten-year sentence, arguing that the trial court did not give
enough weight to mitigating factors and that the sentence is affected by the recent United States
Supreme Court decision in Blakely v. Washington, 542 U.S. __, 123 S. Ct. 2531 (2004).2

        When an accused challenges the length and 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)
(2003). 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).

        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 enhancing 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; State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim.
App. 1987). 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.

         The defendant was convicted of sale of .5 grams or more of a Schedule II controlled
substance, cocaine, a Class B felony, and was sentenced as a Range I, standard offender. The
sentence range for a Class B felony, as a Range I, standard offender is eight to twelve years. Tenn.
Code Ann. § 40-35-112(a)(2) (2003). There is no mathematical formula for evaluating the
enhancement factors to calculate the appropriate sentence. See generally State v. Boggs, 932 S.W.2d
467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is left to
the trial court’s discretion so long as the court complies with the purposes and principles of the 1989



         2
          The Blakely opinion was released while the present appeal was pending before this court and before it had been
docketed. The defendant filed with this court a copy of the opinion as supplemental authority, arguing that it affected
his sentencing.

                                                          -5-
Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76 (citations
omitted).

         Jim Wallace, a supervising probation officer with the Department of Probation and Parole,
testified at the sentencing hearing that he prepared the defendant’s presentence report. He said the
defendant was convicted of misdemeanor contributing to the delinquency of a minor in 1995 and
felony sale of a Schedule II controlled substance, cocaine, in 1996. In addition, the defendant was
on parole when he committed the present offense.

        The defendant testified that he completed the Lifeline Therapeutic Community drug program
while incarcerated in Hardeman County and that he had been attending Alcoholics Anonymous
meetings. He said he was currently working for his father, who trades mules, and for a “Ms.
Coffman,” who worked at a local carpet business. On cross-examination, the defendant said he was
paroled in 1998 on his prior drug conviction, but he violated parole in 2000 and was returned to
prison. He was paroled again in 2001, which was revoked due to the current drug arrest in 2002.

       Thomas Sevier Watkins, the defendant’s father, testified that the defendant had been living
with him and performing some mule work since being released from prison. The defendant had not
been in any trouble as far as he knew.

         At the conclusion of the sentencing hearing, the trial court applied three enhancement factors:
(2), the defendant has a previous history of criminal convictions in addition to those necessary to
establish the range; (9), the defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community; and (14)(B), the felony was committed
while on any of the following forms of release status if such release is from a prior felony conviction:
parole. See Tenn. Code Ann. § 40-35-114(2), (9), (14) (2003). The court also found one mitigating
factor, (1) the defendant’s criminal conduct neither caused nor threatened serious bodily injury. See
Tenn. Code Ann. § 40-35-113(1) (2003). The court sentenced the defendant to ten years, the
midpoint in the range.

        As to the application of the enhancement factors, the trial court determined the factors were
“pretty seriously weighted in the scheme of things” and were sufficient to “adjust the range
significantly upward in the range of eight to twelve.” The court found that the one applicable
mitigating factor had “some bearing” on the court’s determination and settled on a sentence of ten
years, rather than the eleven years sought by the State. We conclude that the trial court did not abuse
its discretion in sentencing the defendant to the midpoint in the range and that its findings were
adequately supported by the record.

          We note that the Supreme Court in Blakely clarified its earlier holding in Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), concluding that “[o]ur precedents make
clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
Blakely, 542 U.S. at __, 124 S. Ct. at 2537. Additionally, under the Apprendi/Blakely scheme, prior


                                                  -6-
adult convictions may still be used to enhance a defendant’s sentence. See State v. Christopher
Kirkendall, No. W2004-00784-CCA-R3-CD, 2004 WL 2083760, at *4 (Tenn. Crim. App. Sept. 16,
2004), applic. for perm. to appeal filed (Tenn. Nov. 24, 2004). In the present case, the defendant has
one prior misdemeanor and one prior felony conviction such that enhancement factor (2) was
properly applied by the trial court. We deem application of factor (2) to be sufficient alone to justify
the sentence imposed by the trial court. Accordingly, the Blakely decision does not affect the
defendant’s sentencing which, we conclude, is supported by the record.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgment of the trial court is
affirmed.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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