        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                             AT KNOXVILLE                         June 16, 1999

                                                                Cecil Crowson, Jr.
                         APRIL SESSION, 1998                    Appellate C ourt
                                                                    Clerk



STATE OF TENNESSEE,       )       C.C.A. NO. 03C01-9706-CR-00222
                          )
     Appellee,            )
                          )
                          )       GREENE COUNTY
VS.                       )
                          )       HON. JAMES E. BECKNER
REGINALD ALLAN GILLESPIE, )       JUDGE
                          )
     Appe llant.          )       (Direct Appeal - Possession with
                          )       Intent to Sell Controlled Substance)




FOR THE APPELLANT:                FOR THE APPELLEE:

GREG W. EICHELMAN                 JOHN KNOX WALKUP
Office of the Public Defender     Attorney General and Reporter
1609 College Park Drive, Box 11
Morristown, TN 37813-1618         SANDY C. PATRICK
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN. 37243-0943

                                  C. BERKELEY BELL
                                  District Attorney General

                                  ERIC D. CHRISTIANSEN
                                  Assistant District Attorney
                                  109 South Main Street
                                  Greeneville, TN. 37743



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                          OPINION

         The appellan t, Reginald Allan Gillespie, was convicted by a Greene County

jury of one (1 ) count o f posses sion of with the intent to sell more than 0.5 grams

of cocaine, a Class B felony, one (1) count of simple possession of marijua na, a

Class A misdemeanor, and one (1) count of unlawful possession of a weapon,

a Class E felon y. He was sentenced as a Range I, standard offender to ten (10)

years for possession of cocaine with the intent to sell, one (1) year for unlawful

possession of a weapon and eleven (11) m onths and tw enty-nine (29) da ys for

posse ssion of m arijuana. O n appe al, Appe llant raises th ree issue s:

         1) whether the trial court pro perly den ied App ellant’s m otion to
         suppress the evidence seized in the search of Appellant’s person;

         2) whether there was sufficient eviden ce at tria l to sup port the jury’s
         verdict; and

         3) whether the trial court erred in imposing his sentences.

After a review of the reco rd before th is Court, we affirm the judgment of the trial

court.



                                              FACTS




         On August 14, 1996, Officer Tim Hartman of the Greeneville Police

Department was patrolling D avis Street in Gree neville when he observed the

appellant and tw o othe r men stand ing along the “W all.”1 Officer Hartman was

traveling at a low rate of speed and the win dows were d own o n his police cruiser.

Upon his detection of the od or of bu rning m arijuan a, the o fficer sto pped his car,



         1
          At the hearing on the motion to suppress, the “Wall” was described as a high crime area along
Davis S treet.

                                                 -2-
requested back up and exited his vehicle. As he approached the three men, he

saw smoke lingering about them.        Officer Hartman asked the men where the

marijuana was located, but did not receive a response.

      Officer Hartm an instruc ted the men to turn a round and fa ce the wall,

spread their legs and put their hand s on the w all. He conducted a patdown

search of the appellant, and as he did so, he felt a large lump in the a ppella nt’s

right and left fron t pants po cket. Because the officer recognized the “lump” in the

appe llant’s left front pocket as being a “plastic bag of material,” he pulled out the

conten ts of the pocket. This search produced a lighter, $103 in cash, and a

plastic bag containing thirty rocks of crack cocaine. The officer further discovered

another plastic bag w hich con tained on e rock of c rack coc aine in the vicinity

where the appellant had been standing. Following the search, Officer Hartman

arrested the app ellant.

      Subseq uently, another officer arrived on the scene, and he conducted a

second search of the appellant’s person. His search of the appellant produced

a gun, a loaded clip, and 3 .6 gram s of mar ijuana.

      The jury found the appellant guilty of possession with intent to sell more

than 0.5 grams of cocaine, simple possession of marijuana, and unlawful

possession of a deadly weapon. The trial court sentenced him to concurrent

terms of ten (10) years for posse ssion with the intent to sell, eleven (11) months

and twenty-nine (29) days for simple possession and one (1) year for unlawful

possession of a weapon. From his convictions and sentences, the appellant now

brings this appea l as of right.




                                         -3-
                                  MOTION TO SUPPRESS




        The appellant contends that the trial court erred in den ying his m otion to

suppress the evidence seized as a result of the officers’ search of his person. He

argues that the initial patdown search conducted by Officer Hartman was

unrea sona ble as it was not sup ported by reas onable sus picion or probable

cause.

                                                 A.

        At the suppression hearing, Officer Hartman testified that he was patrolling

in a high crime area on Davis Street when he noticed the appellant and two other

men standing alon g the “W all.”            His car windows were rolled down, and he

detected the scent of burning marijuana. Officer Hartman was familiar with the

odor of burning marijuana as a result of his training as a police officer. As the

officer exited his vehicle and approached the men, he observed smoke lingering

about them .      In add ition, he recog nized the stro ng od or of bu rning m arijuana.

At this point, the officer conducted a patdown search of the appellant2 and felt a

large lump in both of the appellant’s front pants pockets.                      The officer then

emptied the contents of the appellant’s left front pants pocket and discovered a

lighter, $103 in cash and a plastic bag which contained crack cocaine. The

appellant was arrested, and another search of the appellant’s person produced

a hand gun an d two ba gs con taining m arijuana.

        In denying the mo tion to sup press, the trial court found that the patdown

search of the appellant was supported by reasonable suspicion. The court noted

that, upon the officer detecting the smell of burning marijua na, it was lo gical to


        2
          The officer conducted a patdown search of all three (3) men, but apparently began with the
appellant as he was “the closest” to Officer Hartman at the time. Neither of the other men were charged
with a criminal offense as a result of the officer’s patdown search.

                                                 -4-
conclude that someone in the group of three was smoking marijuana, given the

fact that there was no one else pre sent. The co urt further stated that the officer

“may very well have” had probable cause to search the appellant and his

companions. The trial court recognized the easily disposable nature of the drugs

and concluded tha t there were exige nt circumstan ces which jus tified the more

intrusive search of the app ellant’s per son. As a result, the trial court concluded

that the se arch of the appellan t’s person was co nstitutiona lly permiss ible.

                                         B.

      In reviewing a trial court’s denial of a motion to suppres s, this C ourt is

bound by the trial court’s findings of fact unless the evidence preponderates

otherwise. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). However, the

law as applied to those facts is subject to de novo review. Id. The appellant

bears the burden of demonstrating that the evidence preponderates against the

trial court’s find ings. State v. Odom, 928 S.W .2d 18, 22-23 (Tenn. 199 6).

                                         C.

      The Constitution of the State of Tennessee guarantees that “the peop le

shall be secure in the ir persons, houses, papers and possessions, from

unrea sona ble searches a nd seizure s. . . .” Tenn. C onst. art. I, § 7. T he Fou rth

Amendment to the United States Constitution provides the same guarantee. Any

search conducted without a warr ant is presum ed illegal. State v. Crabtree, 655

S.W.2d 173, 17 9 (Ten n. Crim. A pp. 198 3). The sta te has the burden of showing

that a warrantless search was conducted within a recognized exception to the

warrant requirem ent. State v. McClanahan, 806 S.W .2d 219, 220 (Tenn. Crim.

App. 1991). One such recognized exception is a search supported by proba ble

cause and co nducte d unde r exigent circ umsta nces. State v. Shrum, 643 S.W.2d

891, 893 (T enn. 19 82); State v. Blake ly, 677 S.W.2d 12, 16 (Tenn. Crim. App.

                                         -5-
1983). “Probable cause has been defined as a reasonable ground for suspicion,

supported by circumstances indicative of an illegal act.” State v. Henning, 975

S.W .2d 290, 294 (Tenn. 199 8).

                                        D.

      Although the trial c ourt co nclud ed tha t Office r Hartm an ha d reas onab le

suspicion which     would    warrant    an    investigatory   detention,   the   c ourt

acknowledged that the officer “may very well have” had probable cause when he

detected the scen t of burning marijua na. We agree. The appellant and two other

men were standing alone in a high crime area. The officer, as he was driving

slowly past the men, noticed the odor of burning marijuana. He stopped his c ar,

exited his vehicle and approached the men. Smoke was lingering about the men,

and the officer noticed a strong sm ell of m arijuan a.       Cer tainly, the officer’s

detection of the strong odor of marijuana and his observation of smoke around

the three m en ga ve the o fficer a “r easo nable ground for suspicion, supported by

circumstances indicative of an illegal act.” State v. Henning, 975 S.W.2d at 294.

Thus, we conclude that Officer Hartman had probable cause to believe that the

men w ere com mitting an illegal act.

      Moreover, Officer Hartman was confronted with the possibility that the

appellant might flee from his presence. Additionally, as observed by the trial

court, the app ellant had the ability to dispose of the drugs, even in the presence

of the officers. In our view, to have failed to search under such circumstances

would have meant risking loss of the contraband. See State v. Shrum, 643

S.W.2d at 893. Thus, we conclude tha t there were exigent circumstances which

justified the warrantless search of the appellant’s person.




                                        -6-
       Because Officer Hartman’s search was supported by probable cause and

was conducted under exigent circumstances, we conclude that the trial court

prope rly denied the appellant’s motion to suppress. This issue is without m erit.



                        SUFFICIENCY OF THE EVIDENCE




       In his first issue, the appellan t contend s that the e vidence is insufficient to

support his convic tion for p osse ssion with the intent to sell. Appellant complains

there was no ac tual sale or any d irect evidence of a sa le submitted to the jury.

He further asserts that the state’s reliance o n the presen ce of cash, a b eeper,

and the am ount o f coca ine wa s insuf ficient to prove that the coca ine fou nd on his

person was possessed for the purpose of resale.

                                            A.

       When an accused challenges the sufficiency of the evidence, this Co urt

must review the record to determine if the evidence adduced during the trial was

sufficient “to supp ort the fin dings by the tr ier of fac t of guilt beyon d a rea sona ble

doubt.”   Tenn . R. App . P. 13(e). T his rule is app licable to findin gs of g uilt

predicated upon direct e videnc e, circu msta ntial evidence or a combination of

direct and circu mstan tial evidenc e. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.

Crim. App . 1996).

       It is well-settled that a criminal offense may be established exclusively by

circumstantial evidenc e. State v. Lequire , 634 S.W .2d 608, 614 (Tenn. Crim.

App. 1981); State v. Hailey, 658 S.W .2d 547, 552 (Tenn. Crim . App. 1983 ).

Further, to support a conviction based upon circumstantial evidence alone, the

facts and circumstances “must be so strong and cogent as to exclude every other




                                            -7-
reasonable hypothesis save the guilt of the defen dant.” State v. Crawfo rd, 225

Tenn. 47 8, 470 S.W .2d 610, 612 (1971).

      In determining the sufficiency of the evidence, this Court does not reweigh

or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). Nor m ay this C ourt su bstitute its inferences for those drawn by the trier

of fact from c ircums tantial evide nce. Liakas v. State , 199 Tenn. 298, 305, 286

S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the state

the strongest legitimate view of the evidence contained in the record as well as

all reasonable and legitimate inferences which may be drawn from the evidence.

State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). “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).             Questions concerning the

credibility of the witnesses, the weight and value to be g iven the eviden ce as well

as all factu al issues raised by the evidence are resolved by the jury as the trier

of fact. State v. Tuttle , 914 S.W.2d at 932.

      Because a verdict of guilt removes the presumption of innocence and

replaces it with a presumption of guilt, the accused has the burd en in this Court

of illustrating why the evidence is insufficient to support the verdict returned by

the trier of fact. State v. Tug gle, 639 S.W.2 d 913, 9 14 (Te nn. 198 2); State v.

Grace, 493 S.W.2d at 476.

                                         B.

      To convict the appellant for the crime of possession of a controlled

substance with the intent to sell, the state was required to prove that the

appellant “possessed a controlled substan ce with inte nt to manufacture, deliver

or sell such c ontrolled s ubstan ce.” Tenn. Co de Ann. § 3 9-17-417 (a )(4). Tenn.

                                         -8-
Code Ann. § 39-17-419 provides, in pertinent part, “[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 oth erwise d ispensin g.”

         In the present case, Officer Hartman found thirty (30) rocks of cocaine on

the appellant’s person. In our view, the large amount of cocaine found on

Appe llant’s person and the location of the crime support an inference of intent to

sell as opp osed to person al use. State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim.

App. 1995). Furthermore, the appellant was carrying a handgun and a beeper

at the time of his arrest, which is also circumstantial evidence indicating an intent

to sell. See State v. Willie J. Wade, C.C.A. No. 02C01-9709-CC-00359, 1998

Tenn. Crim . App. L EXIS 630, F ayette Coun ty (Ten n. Crim . App. filed June 11,

1998, at Jackson); State v. Ron ald Mitc hell, C.C.A. No. 02C01-9702-CC-00070,

1997 Tenn . Crim. A pp. LEXIS 871, Lauderdale County (Tenn. Crim. App. filed

September 15, 1997, at Jackso n); State v. R eginald T . Smith, C.C.A. No. 02C01-

9204-CR-00097, 1993 (Tenn. Crim. App. filed February 17, 1993, at Jackson).

Based upon the foregoing cogent circumstances, we conclude that the jury could

have reason ably foun d each of the elem ents of the offense beyon d a rea sona ble

doubt.

         This issu e is withou t merit.



                                     SENTENCING




         Finally, the appellant contends that the trial cou rt erred in imposing

excessive sentences. Specifically, he claims that the trial co urt erro neou sly




                                          -9-
applied an enhan cemen t factor in sentencing him on his convictions for

possession with the intent to sell cocaine and simple possession of marijuana.

                                            A.

         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. Poo le, 945 S.W.2d 93, 96 (Tenn.

1997).

         Ordinarily, a trial co urt is required to make sp ecific findings on the rec ord

with regard to senten cing dete rminatio ns. See Tenn. Code Ann. §§ 40-35-

209(c), 40-35-210 (f). However, with regard to misdemeanor sentencing, our

Supreme Court has recently held that this Court’s review of misdemeanor

sentencing is de novo with a p resum ption o f correc tness even if th e trial co urt did

not make specific findings of fact o n the re cord b ecau se “a tria l court n eed o nly

consider the prin ciples of sen tencin g and enha ncem ent an d mitig ating fa ctors in

order to comply with the legislative mandates of the misdemeanor sentencing

statute.” State v. Troutman, 979 S.W .2d 271, 274 (Tenn. 199 8).

         The burde n is up on the appe aling p arty to sh ow tha t the se ntenc e is

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

In conducting our review, we are required, pursua nt to Ten n. Cod e 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;


                                           -10-
      (2) [t]he pre senten ce repo rt;

      (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 fac tors in §§ 40-35 -113 and 40-35-114;
      and

      (6) [a]ny statement the defendant wishes to mak e in the defen dant's
      own behalf about sentencing.

      Under the 1989 Sentencing Act, the presumptive sentence is the minimum

within the applicable range if no mitigating or enh ancem ent factors for sentencing

are present. Tenn. C ode An n. § 40-3 5-210(c ); State v. Fletcher, 805 S.W.2d

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

shou ld start at the m inimu m se ntenc e, enh ance the m inimu m se ntenc e within the

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

the mitigating factors. Tenn. Code Ann. § 4 0-35-21 0(e). No particular weight for

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

to the discretion o f the trial court as long as its findings are supported by the

record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App . 1995); see

Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments.

      Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-302,

which provides that the trial court shall impose a specific sentence consistent

with the purposes and principles of the 1989 C riminal S entenc ing Refo rm Ac t.

See State v. Palmer, 902 S.W.2 d 391 (T enn. 19 95).            On e convicte d of a

misdemeanor, unlike one convicted of a felony, is not entitled to a presumption

of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.

App. 1994). Misdemeanor sentences do not contain ranges of punishments, and

a misdemeanor defendant may be sentenced to the maximum term provided for

                                         -11-
the offense as long as the sentence imposed is consistent with the purposes of

the sen tencing a ct. State v. Palmer, 902 S.W.2d at 393.

                                          B.

      At the sentencin g hearing, the trial cou rt found one enhancement factor

and no mitigating factors applicable. The trial court found that Tenn. Code Ann.

§ 40-35-1 14(9), tha t the appe llant possesse d or emp loyed a firearm during the

commission of the offense to be applicable to the appellant’s sentences for

possession with the intent to sell cocaine and simple possession of marijuana.

The trial court imposed a sentence of ten (10) years for appellant’s sentence for

possession with the intent to sell, a Class B felony, and eleven (11) months and

twenty-nine (29) da ys for sim ple possession. Because no enhancement factors

were applicable to the appellant’s conviction for unlawful posse ssion of a

weapon, the trial court imposed the minimum sentence of one (1) year for the

Class E felon y.

                                          C.

       Enhancement factors can be utilize d by the trial judg e if these factors are

“not themselves essential eleme nts of the offen se as ch arged in the indictm ent.”

Tenn. Code Ann. § 40-35-114, Sentencing Comm ission Comments.                    In the

present case, the trial court use d the de adly wea pon en hance ment fa ctor to

enhance the appellant’s sentence.          In o ur view, this was clearly pro per.

Possession of a deadly weapon is not an essential element of either the offense

of poss essio n with in tent to s ell or simple possession of marijuana. Thus, the trial

court approp riately applied this enha nceme nt factor.

       The trial court found no mitigating factors and one (1) enhancement factor

for the poss ession c onvictions . The weight for each enhancement factor is left

to the discretion of the trial court as long as its findings are supported by the

                                         -12-
record. State v. Santiago, 914 S.W .2d at 125 . For poss ession w ith the intent

to sell, the trial court sentenced the appellant to ten (10) years, the middle of the

range for a Class B felon y. This sentence was entirely appropriate. Furthermore,

for simple possession of marijuana, a Class A misdemeanor, there is no

presumption of a minimum senten ce. Thu s, the trial cou rt impos ed app ropriate

sentences for the appellant’s convictions for possession of cocaine with the intent

to sell and simple possession of marijuana.

       This issu e has n o merit.



                                    CONCLUSION




       The searc h of the appe llant’s person was constitutionally permissible, and

the trial court did not err in denying the appellant’s motion to suppress.

Furthermore, the eviden ce is sufficient to support the appellant’s convictions, and

the trial court imposed appropriate sentences. Accordingly, the judgment of the

trial court is affirmed.




                                    ____________________________________
                                    JERRY L. SMITH, JUDGE



CONCUR:



  Not Participating
PAUL G. SUMMERS, JUDGE


___________________________________
JAMES CURWOOD WITT, JR.

                                        -13-
