         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     May 3, 2005 Session

                 STATE OF TENNESSEE v. HENRY ERIC NASH

                   Direct Appeal from the Circuit Court for Tipton County
                          No. 4747 Joseph H. Walker, III, Judge



                  No. W2004-02403-CCA-R3-CD - Filed November 7, 2005


The defendant appeals his conviction for possession of cocaine with intent to deliver and the
resulting eleven-year sentence. Following our review, we find all issues presented to be either
waived or without merit; therefore, we affirm both the conviction and sentence.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES, J.,
joined. GARY R. WADE, P.J., filed a concurring opinion.

C. Michael Robbins (on appeal) and Larry M. Sargent (at trial), Memphis, Tennessee, for the
appellant, Henry Eric Nash.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and James Walter Freeland, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                   Facts and Procedural History

        The defendant, Henry Eric Nash, was convicted by a jury of one count of possession of a
Schedule II controlled substance (cocaine) with intent to deliver (a Class B felony). Thereafter, he
was sentenced as a Range I, standard offender to eleven years in the Department of Correction. On
direct appeal to this court, the defendant contends that:

       (1)     the evidence was insufficient to support the conviction;
       (2)     the trial court erred in allowing the prosecution to introduce evidence
               identifying the defendant as being named in the search warrant and by
                  permitting Sergeant Taylor to recite hearsay details of information provided
                  by an informant in connection with securing the warrant;
         (3)      the trial court erred in its instructions to the jury concerning the definition of
                  “knowingly”;
         (4)      the enhancement factors were inappropriately applied in view of the Supreme
                  Court’s holding in Blakely v. Washington; and
         (5)      the trial court erred in denying alternative sentencing.

Following a thorough review of the issues presented,1 we affirm the defendant’s conviction and
sentence.

       At trial, Sergeant GarrisonTaylor testified that he is employed with the Covington Police
Department as supervisor of the drug unit. His experience in law enforcement led him to estimate
the average price of cocaine to be $200 per gram.

        Turning to the present case, Sergeant Taylor recalled that he personally observed the
defendant at the residence located at 802 Hill Street in the days leading up to May 30, 2003. He
stated that he obtained a search warrant, which was directed to the Hill Street residence and the
defendant. Sergeant Taylor was supervising the execution of the search warrant and was
accompanied by other officers when the warrant was executed in the early morning hours of May
30, 2003.

        Once on the scene, Sergeant Taylor and the other officers initiated a knock and announce,
and, after receiving no response, forcibly entered the residence. The defendant was alone and was
found in the rear bedroom of the residence. Upon entering the bedroom, the officers discovered what
was believed to be compressed powder cocaine and a blue pill bottle containing crack cocaine on
a night stand within the defendant’s arm’s reach. They also found $485 in cash in a dresser drawer
in the same room. Notably, no drug paraphernalia was found and the defendant did not appear to
be under the influence of cocaine or alcohol. After performing a field test on the seized contraband,
Sergeant Taylor’s suspicions were confirmed, as the test indicated that both substances contained
cocaine base. The substances were later sent to the Tennessee Bureau of Investigation (TBI) lab for
a confirmed identification.

       On cross-examination, Sergeant Taylor explained that he and the other officers found the
defendant in the rear bedroom in his boxer shorts, as if he had been asleep. He reiterated that the
drugs were found on a night stand next to the bed, while the cash was discovered in the drawer of
a dresser located against a wall on the side of the bed. Sergeant Taylor stated that the defendant
appeared to have been sleeping on the left side of the bed, next to the table where the drugs were
found. He did not recall if he saw any of the defendant’s clothes in the house.

         On redirect examination, Sergeant Taylor testified that the cash was found in denominations

         1
           In conducting our analysis, we have addressed the issues in a different sequence than they were presented in
the defendant’s brief.

                                                         -2-
of thirteen twenty-dollar bills; eleven ten-dollar bills; and twenty-three five-dollar bills. He recalled
that an aggressive pit bull met the officers as they entered the house and that the defendant had to
restrain the dog in order for them to execute the search. Sergeant Taylor noted that the defendant did
not exhibit fear in approaching the dog. On recross-examination, he acknowledged that dogs are
generally protective of their homes and that there were other pit bulls in residences in Tipton County.

        Investigator Pam Ford Simpson testified that she is employed with the Covington Police
Department and that she was familiar with the defendant and the Hill Street residence because she
also lives in that neighborhood. She stated that she is able to observe persons coming and going
from the house and that she had seen the defendant in the yard with friends “on several occasions.”
Investigator Simpson testified that she was involved in the execution of the search warrant on the
residence. On cross-examination, she acknowledged that she did not see the defendant at the Hill
Street residence every day.

        Special Agent Dana Rose testified that she is employed with the TBI in the controlled
substances identification division. Following the deposit of the seized contraband by Sergeant
Taylor, Special Agent Rose identified the substances to be 3.9 grams of cocaine base and 6.5 grams
of cocaine, both Schedule II controlled substances.

       Minnie Lee Nash testified that her son, the defendant, was living with her at 91 Talley Road
in Atoka, Tennessee, in May 2003. She acknowledged that he did stay away from the house
occasionally on Saturday nights. On cross-examination, Nash stated that she would not allow crack
cocaine to be kept at her home.

        Talesa Nash then testified that, although she was married to the defendant, they were not
living together in May 2003 or at the time of trial. She stated that the defendant visited her home
at 802 Hill Street often and sometimes spent Saturday nights there. Mrs. Nash recalled that in late
May 2003, she hosted a barbecue for friends and family at her home in anticipation of moving from
the residence. She stated that her belongings were packed in boxes and that she had some money
on the dresser in her bedroom. Mrs. Nash testified that she was not at home when the search warrant
was executed because she left after becoming upset with the defendant for drinking. She stated that
when she left at approximately 7:30 or 8:00 p.m., the defendant was asleep on her bed and six or
seven people were playing games in her bedroom. Mrs. Nash noted that her sons have a pit bull
named Zeus, which they have had for some time.

        On cross-examination, Mrs. Nash testified that her sons are ages ten, six, and five. She
explained that the defendant knew how to control the dog, as did the rest of the family. She stated
that she had seen the defendant smoke crack cocaine approximately two times but that she did not
see him do so at her house. She reiterated that the defendant slept at her residence on May 30, 2003,
because she left him there after discovering that he had been drinking. Mrs. Nash testified that the
defendant did not stay at her residence when she was not there. She further stated that the cocaine
seized during the search did not belong to her or her sons.



                                                  -3-
         As the final witness at trial, Sheldon Edwards testified that he was present with the defendant
at the Hill Street residence on May 29, 2003. He recalled that a group of friends and family came
to the residence to watch a basketball game, smoke, and drink. Edwards stated that those attending
the party were contributing money to help Mrs. Nash move and that they brought drugs and alcohol
with them as they came into the house. Edwards testified that he and some other individuals moved
the defendant into the bedroom at approximately 8:00 or 9:00 p.m. because he was drunk and that
three people were left in the house after the defendant passed out. Edwards testified that he saw the
drugs on the night stand when he took the defendant to the bedroom but that he did not see the
defendant put the drugs on the table.

        On cross-examination, Edwards testified that he saw people at the party snorting powder
cocaine, smoking crack cocaine, smoking marijuana, and smoking marijuana laced with cocaine.
He further stated, however, that he did not see the defendant smoking cocaine and that he and the
defendant only smoked marijuana. Edwards reiterated that people were giving money to Mrs. Nash
to help with her move and further noted that people who attended the party left some drugs in the
house. On redirect-examination, Edwards stated that he never saw the defendant bring any drugs
into the house.

        Based upon the evidence presented at trial, the defendant was convicted of one count of
possession of a Schedule II controlled substance (cocaine) with intent to deliver and was sentenced
as a Range I, standard offender to eleven years in the Department of Correction. He now appeals his
conviction and sentence.

                                               Analysis

                                            I. Sufficiency

         The defendant first challenges the sufficiency of the evidence to support his conviction. This
court does not reweigh or reevaluate the evidence in determining sufficiency. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). A jury verdict, once approved by the trial judge, accredits the State’s
witnesses and resolves all conflicts in favor of the State. State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994). Accordingly, the State is entitled to the strongest legitimate view of the evidence and
all legitimate and reasonable inferences that may be drawn therefrom. Id. It is our duty to affirm the
conviction if the evidence, viewed under the appropriate standards, was sufficient for any rational
trier of fact to have found the essential elements of the offense beyond a reasonable doubt. See
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).

       Although the evidence of the defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). The circumstantial
evidence, however, must exclude every other reasonable theory or hypothesis other than guilt.
Tharpe, 726 S.W.2d at 900. In addition, “it must establish such a certainty of guilt of the accused


                                                  -4-
as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed
the crime.” Id. (citations omitted).

        The conviction offense requires proof that the defendant knowingly possessed cocaine with
the intent to deliver it. See Tenn. Code Ann. § 39-17-417 (2003). Possession may be actual or
constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). To prove constructive possession,
the State must establish the defendant had the power and intention at a given time to exercise
dominion and control over the drugs either directly or through others. Id. at 903; State v. Patterson,
966 S.W.2d 435, 445 (Tenn. Crim. App. 1997). Presence in the area of the drugs or association with
those possessing drugs is insufficient, alone, to establish constructive possession. State v. Cooper,
736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Further, pursuant to Tennessee Code Annotated
section 39-17-419, “[i]t may be inferred from the amount of a controlled substance or substances
possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled
substance or substances were possessed with the purpose of selling or otherwise dispensing.”

        Taking the evidence in the light most favorable to the State, we conclude that there was
sufficient evidence to prove that the defendant knowingly possessed cocaine. At trial, Sergeant
Taylor and Investigator Ford both testified they had personal knowledge that the defendant had been
at the Hill Street residence in the days leading up to May 30, 2003. Furthermore, when the search
warrant was executed, the defendant was the only individual in the house and the cocaine was found
within his reach, on a table next to the bed where he had been sleeping. Moreover, it was undisputed
that the seized contraband was positively identified as 10.4 grams of cocaine.

        We further conclude that the evidence was sufficient to find that the defendant intended to
deliver the cocaine. In addition to the amount of contraband seized from the residence and its
estimated street value of $2080, there are additional facts supporting the inference that the defendant
intended to sell or deliver the cocaine. We particularly note that Sergeant Taylor testified that he did
not discover any drug paraphernalia in the house and did not find the defendant under the influence
of drugs or alcohol. Further, although the testimony suggested that the defendant did not live at the
residence, the record reflects that Sergeant Taylor and Investigator Ford had seen him there in the
days prior to his arrest. Finally, the officers seized $485 in cash from the room in which the
defendant slept, in the following denominations: thirteen twenty-dollar bills; eleven ten-dollar bills;
and twenty-three five-dollar bills. In our view, this evidence, taken cumulatively, was sufficient to
support the inference that the defendant intended to deliver the cocaine.

                                  II. Testimony of Sergeant Taylor

        Next, the defendant contends that the trial court erred in allowing the prosecution to introduce
evidence identifying the defendant as named in the search warrant, and by permitting Sergeant
Taylor to recite hearsay details of an informant’s statement used to secure the search warrant. The
record reflects that the defendant filed a motion in limine seeking to exclude, inter alia:

       1. The one page document entitled Affidavit for Search Warrant and Search Warrant:


                                                  -5-
              a. The Affidavit for Search Warrant alleges Sgt. Garrison Taylor
                 received numerous complaints from concerned citizens of crack
                 cocaine being sold from 802 Hill Street in Covington, Tennessee;
              b. The Affidavit for Search Warrant alleges that an un-named [sic]
                 confidential informant, while wearing an audio device, purchased
                 crack cocaine from a black male named Henry Nash at 802 Hill
                 prior to the issuance of the search warrant; and
              c. The Search Warrant identifies the defendant as violating the law
                 and names him as the person occupying the premises to be
                 searched by the warrant.

Prior to trial, the parties and the trial court addressed the motion, at which time the following
exchange was made:

       [State]: Your Honor, there is a search warrant, and there will be some minimum
       reference to a search warrant just to establish that the police aren’t kicking
       somebody’s door in without some kind of legal writ. As far as the various language
       of the search warrant about concerned citizens and a controlled drug buy within the
       past 72 hours, we’re not going to go into that. That’s what the Motion in Limine
       addresses.

       [Trial Court]: The Court grants the motion with regard to the particulars in the
       affidavit, absent a jury-out hearing about the admissibility of any prior bad conduct.

       [State]: Your Honor, what we frankly had planned to do was just make some bare
       reference to the search warrant and make it an exhibit for identification purposes
       without being published to the jury, no reference to concerned citizens and that sort
       of thing.

       [Trial Court]: Yes, sir. Any response to that?

       [Defense Counsel]: Your Honor, I have no objection to that.

       [Trial Court]: All right. The Court will allow that.

       [Defense Counsel]: Your Honor, we also raise in our Motion in Limine any reference
       to the search warrant specifically identifying [the defendant].

       [Trial Court]: The court would allow, I think, a witness to establish that they were at
       the proper residence and to establish, if they know, if the witnesses [sic] knows,
       whose residence it is, so that whatever the facts are – I don’t know what the facts are
       – but as far as any prior conduct alleged in the affidavit by the defendant, the Court
       will grant the Motion in Limine, so that the State is not to refer to that in opening or


                                                -6-
       voir dire or with any witnesses unless there’s a prior jury-out hearing to determine the
       admissibility of any prior bad conduct.

At trial, Sergeant Taylor was examined as follows:

       [State]: All right. Now, directing your attention back to May 30, 2003, and the
       address of 802 Hill Street in Covington, first of all, that is in Tipton County, is it not?

       [Sgt. Taylor]: That’s correct.

       [State]: Did you have prior knowledge that [the defendant] was staying at that
       residence in the days before and including May 30, 2003?

       [Sgt. Taylor]: Yes, I did.

       [State]: Had you personally observed him at that residence on May 30 and the days
       preceding May 30?

       [Sgt. Taylor]: Yes, I have.

       [State]: Did you have knowledge on occasion that he was inside that residence within
       72 hours of May 26, 2003?

       [Sgt. Taylor]: That’s correct.

       [State]: On May 26, 2003 – first of all, let me show you a piece of paper. If I may
       show you what purports to be an Affidavit for Search Warrant and a Search Warrant.
       Are you familiar with that?

       [Sgt. Taylor]: Yes, I am.
       [State]: Is that a true and exact copy of the search warrant that you were involved in
       obtaining?

       [Sgt. Taylor]: Yes, it is.

       [State]: On what date was it obtained?

       [Sgt. Taylor]: It was signed on May 26, 2003, at 9:02 a.m., in General Sessions Court,
       by Judge Peeler.

       [State]: What day was it executed or did you –

       [Sgt. Taylor]: The date of execution would have been on May 30.


                                                  -7-
       [State]: And what address was it directed to?

       [Sgt. Taylor]: That would have been 802 Hill Street, Covington, Tipton County,
       Tennessee.

       [State]: And what person, if any, was it directed to at that address?

       [Defense Counsel]: Your honor, I’d object to relevance. Who it’s directed to is not
       relevant to the case. The only issue here is whether or not they had a valid search
       warrant to search the premises, which they did.

       [Trial Court]: All right. The Court will allow the question, overrule the objection.

       [State]: To what person or persons was the search warrant directed at 802 Hill Street
       in Covington?

       [Sgt. Taylor]: Would have been [the defendant].

The defendant now challenges this portion of Sergeant Taylor’s testimony on grounds that it
constitutes inadmissible hearsay, that it is irrelevant, and that any probative value it may have had
is substantially outweighed by its prejudicial nature. See Tenn. R. Evid. 802; 402; 403.

        In first addressing the defendant’s hearsay argument, we note that the questions presented
to Sergeant Taylor were phrased and answered such that they represented only his personal
observations and not the statement of an informant. Although an informant could have observed
similar activity, Sergeant Taylor did not relay secondhand information but only testified as to the
activity he witnessed firsthand. Therefore, the testimony was not hearsay. See Tenn. R. Evid. 802.

        Next, we turn to the relevance of Sergeant Taylor’s testimony. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 402.
Once the court concludes the evidence is relevant, it should exclude the evidence if its probative
value is substantially outweighed by its prejudicial effect. Tenn. R. Evid. 403; State v. James, 81
S.W.3d 751, 757 (Tenn. 2002). A trial court’s decision as to the relevance of evidence under Rule
402 will be reversed only upon a showing of abuse of discretion. State v. Powers, 101 S.W.3d 383,
395 (Tenn. 2003).

        Upon review, we conclude that the identification of the person to whom the search warrant
was directed was irrelevant to the issues presented at trial. However, given the nature of the
evidence presented, we further conclude that the trial court’s failure to exclude the testimony was
harmless error. As we have noted, the record reflects that the defendant was the only person found
in the house and that over ten grams of cocaine were discovered next to the bed where the defendant


                                                -8-
ad been sleeping. Further, the defendant did not appear to be intoxicated by either drugs or alcohol,
and no drug paraphernalia was found at the residence. Finally, officers had seen the defendant at the
Hill Street residence in the days leading up to his arrest. Therefore, it is our determination that even
if the irrelevant testimony had been excluded, there is not a reasonable probability that a different
conclusion would have resulted. As such, the error was harmless.

                        III. Jury Instruction on the Definition of “Knowing”

       The defendant further contends that the trial court erred in instructing the jury as to both the
“nature of conduct,” and the “circumstances surrounding the conduct” language in defining the term
“knowingly” to the jury. In the present case, the trial court instructed the jury that:

                Knowingly means that a person acts knowingly with respect to the conduct
        or circumstances surrounding the conduct when the person is aware of the nature of
        the conduct or that the circumstances exist. The requirement of knowingly is also
        established if shown that the defendant acted intentionally.

                Intentionally means that a person acts intentionally with respect to the nature
        of the conduct or the result of the conduct when it’s the person’s conscious objective
        or desire to engage in the conduct.

Initially, we note that the defendant has waived this issue for failure to raise it in his motion for new
trial. Specifically, Tennessee Rule of Appellate Procedure 3(e) provides that for appeals of “cases
tried by a jury, no issue presented for review shall be predicated upon error in the admission or
exclusion of evidence, jury instructions granted or refused, . . . or other action committed or
occurring during the trial of the case, or other ground upon which a new trial is sought, unless the
same was specifically stated in a motion for a new trial; otherwise such issues will be treated as
waived.”

        Notwithstanding waiver, we further conclude that the trial court did not err in instructing on
both the “nature of conduct” and the “circumstances surrounding conduct” language. This court has
previously held that possession of cocaine with intent to sell or deliver is a nature of conduct offense,
requiring that the defendant be aware he or she is in possession of cocaine. State v. Frank Gaitor,
No. E2001-02531-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 1106, at *34 (Tenn. Crim. App.,
at Knoxville, Dec. 23, 2002) app. denied (Tenn. May 27, 2003). Further, the culpable mental states
of “intentional” and “knowing” are applicable to nature of conduct offenses. State v. Deji A.
Ogundiya, No. M2002-03099-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App.,
at Nashville, Feb. 19, 2004). Tennessee Code Annotated section 39-11-302 provides the following
definitions for those terms:

        (a) “Intentional” refers to a person who acts intentionally with respect to the nature
        of the conduct or to a result of the conduct when it is the person’s conscious objective
        or desire to engage in the conduct or cause the result.


                                                  -9-
       (b) “Knowing” refers to a person who acts knowingly with respect to the conduct or
       to circumstances surrounding the conduct when the person is aware of the nature of
       the conduct or that the circumstances exist. A person acts knowingly with respect to
       a result of the person’s conduct when the person is aware that the conduct is
       reasonably certain to cause the result.

Tenn. Code Ann. § 39-11-302(a), (b) (2003). In the instant case, the trial court properly omitted the
separate “result of conduct” language from the definition of “knowing” and instructed the jury on
the remainder of the definition. A plain reading of the statute leads us to conclude that the
instruction on both the “nature of conduct” and “circumstances surrounding conduct” language was
not in error, in that the proper definition can be applied as the conduct element of the offense
dictates. In this case, the trial court explicitly instructed that knowing possession of cocaine was an
essential element of the offense. Moreover, the definition of intentional is the same for both result
of conduct and nature of conduct offenses. Therefore, the trial court did not err in instructing the
jury on the entire definition as given in the statute.

                                     IV. Blakely v. Washington

        The defendant also challenges his enhanced sentence based upon the Supreme Court’s
holding Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Our Supreme Court,
however, has recently determined that Blakely does not impact the validity of Tennessee’s
sentencing scheme. See State v. Gomez, 163 S.W.3d 632 (Tenn. 2005). Thus, the defendant is not
entitled to relief based on this issue.

                                V. Denial of Alternative Sentencing

        Finally, the defendant contends that the trial court erred in denying alternative sentencing.
This court’s review of a sentence imposed by the trial court is de novo with a presumption of
correctness. Tenn. Code Ann. § 40-35-401(d) (2003). 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. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). 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 Tennessee Code Annotated section 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)


                                                 -10-
       [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 the defendant’s own behalf about sentencing.

        Under the Criminal Sentencing Reform Act of 1989, trial judges are encouraged to use
alternatives to incarceration. 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 options in the
absence of evidence to the contrary. Tenn. Code Ann. § 40-35-102(6) (2003).

        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)
(2003); see also State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

        A court may also consider the mitigating and enhancing factors set forth in Tennessee Code
Annotated sections 40-35-113 and -114 as they are relevant to the section 40-35-103 considerations.
Tenn. Code Ann. § 40-35-210(b)(5) (2003); 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) (2003); Boston, 938 S.W.2d at 438.

        There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. Tenn. Code Ann. §
40-35-103(2); State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed,
individualized punishment is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d
301, 305 (Tenn. Crim. App. 1994). In summary, sentencing must be determined on a case-by-case
basis, tailoring each sentence to that particular defendant based upon the facts of that case and the
circumstances of that defendant. State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

       At the conclusion of the sentencing hearing, the trial court noted the following:

               I’ve reviewed the presentence report, the principles of sentencing, the statement of
       the defendant, the nature and characteristics of the criminal conduct involved[.]

               ....

               Under T.C.A. 40-35-114, the Court finds enhancing factor number two applies; that
       is, the defendant has a previous history of criminal behavior or criminal convictions in
       addition to what’s necessary to establish the appropriate range.

               The defendant has multiple misdemeanor convictions and multiple felony


                                                -11-
       convictions. He has in 1999 an E felony of failure to appear, another E felony of failure to
       appear, a possession of a weapon, and another possession of a weapon; in 1998 the C felony
       of cocaine, and another – an evading arrest, that is, in 1998. In 1997 a possession of a
       weapon by a convicted felon; in 1993 an evading arrest, a possession with intent conviction;
       in 1992 an evading arrest, and multiple other misdemeanor convictions.

               ....

              The defendant does not qualify for probation under T.C.A. 40-35-303, and the
       Court doesn’t believe alternate sentencing is appropriate under T.C.A. 40-35-106.

               The defendant has a record of violation of the law. As he noted in his
       statement, he’s been into court multiple times. Measures less restrictive than
       confinement have been applied many times without success. He’s had a blatant
       disregard for the law for years. The Court finds confinement is necessary to protect
       society, where he has, this defendant, a long history of criminal conduct; to avoid
       deprecating [sic] the seriousness of the offense; that a sentence for this defendant
       would perhaps be a deterrent to others; and measures less restrictive have been
       applied multiple times to the defendant without success.

        Upon review of the trial court’s findings, we conclude that it considered both the applicable
sentencing principles and the particular facts of the case and properly found that the defendant was
not an appropriate candidate for alternative sentencing.

                                            Conclusion

          Based on the foregoing reasoning, we affirm the defendant’s conviction and sentence.




                                                       ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




                                                -12-
