         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            MARCH 1997 SESSION
                                                         FILED
                                                            May 29, 1997

STATE OF TENNESSEE,             )                        Cecil Crowson, Jr.
                                )                        Appellate C ourt Clerk

                   Appellee,    )    No. 02C01-9611-CC-00382
                                )
vs.                             )    Obion County
                                )
MICHAEL WAYNE HENRY,            )    Honorable William B. Acree, Judge
                                )
             Appellant.         )    (Sale of Cocaine)
                                )



FOR THE APPELLANT:                   FOR THE APPELLEE:

C. MICHAEL ROBBINS                   JOHN KNOX WALKUP
202 S. Maple, Suite C                Attorney General & Reporter
Covington, TN 38019
(Appellate Counsel)                  KENNETH W. RUCKER
                                     Assistant Attorney General
JOSEPH P. ATNIP                             Criminal Justice Division
District Public Defender             450 James Robertson Parkway
JAMES D. KENDALL                     Nashville, TN 37243-0493
Assistant Public Defender
P.O. Box 734                         THOMAS A. THOMAS
Dresden, TN 38225                    District Attorney General
(Trial Counsel)                      HEARD B. CRITCHLOW
                                     Asst. District Attorney General
                                     JAMES T. CANNON
                                     Asst. District Attorney General
                                     414 So. Fourth
                                     P.O. Box 218
                                     Union City, TN 38261-0218




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION



              The defendant , Michael Wayne Henry, was convicted in a jury trial in

the Obion County Criminal Court of the sale of more than .5 grams of cocaine, a

Class B felony, 1 and of a second sale of less than .5 grams of cocaine, a Class C

felony. 2 For the Class B felony, he received a nine- year sentence as a standard,

Range I offender and a fine of $1,000. For the Class C felony, he received a

concurrent seven-year sentence as a Range II offender. 3 In this direct appeal, the

defendant challenges the sufficiency of the evidence and contends that his

sentences are excessive.



              We affirm the judgment of the trial court.



              The charges against the defendant arose as part of the Union City

Police Department’s undercover narcotic operations. On two different occasions the

defendant was involved in the sale of cocaine to an informant in Union City,

Tennessee.     The grand jury returned separate indictments on each count.     The

two cases were joined for trial.



               Evidence presented at trial shows that on June 6, 1995, Anthony

Dysart, the informant, reported to Lt. Rick Kelly that Mike Henry, the defendant,

was going “to hook him up,” that is, “provide him with drugs.” The officer provided

Dysart with a “wire” and forty dollars to make the purchase. The informant rode his


       1
              Indictment No. 10148.
       2
              Indictment No. 10149.
       3
             The jury imposed a fine of $2,000 in each conviction. The trial
judge waived the fine due to the defendant’s indigency in the conviction for the
Class C felony and reduced the fine by one-half in the Class B felony conviction.

                                         2
bike to the defendant’s house while the officer remained in his police car monitoring

the transaction. Via the wire, Lt. Kelly heard Dysart yelling, “Mike! Hey, Mike!” and

then “Are you holding, man?”      Kelly heard the defendant reply that they would

have to go elsewhere. Moments later he saw the two men riding their bikes on

Cheatham St. and heard the defendant say “There’s the police.”



              Dysart testified that he followed the defendant to a house on Home

St. After Dysart gave him the money, the defendant told him wait down the block.

Dysart watched him enter the house. The defendant returned shortly and the two

rode off down the street. The defendant spotted Kelly in his police car, and said,

“There goes Rick Kelly. If he caught me, I would just eat them.” They rode about

for a few more minutes, and then over the wire, Kelly heard Dysart tell the

defendant, “Go ahead and give me the whatever, I’ve got to get out of here. I’ve got

to go.” The defendant passed two “rocks” in a plastic bag to Dysart who turned over

the contraband to Kelly a few minutes later. The laboratory technician testified that

this bag contained .1 gram of a substance containing cocaine.



              The second offense occurred on June 30, 1995. On that day, Dysart

informed Kelly that he had arranged to buy cocaine from a person called “Fresh.”

Kelly provided Dysart with a wire and fifty dollars and dropped him off near “Fresh’s”

house at about 3:30 p.m. The officer observed that a car belonging to “Fresh” was

parked nearby. Once again Kelly monitored the transaction via the wire worn by

Dysart. He testified that he heard Dysart tell the person who answered the door that

he wanted a “fifty.” Following a conversation with two or three other people in the

house, Kelly heard the person who delivered the drugs to Dysart ask if he could

have “a pinch” off of it. Dysart refused because the rocks were too small.




                                          3
               Dysart testified that, although he had set up the deal with “Fresh,” the

defendant answered the door and asked him what he needed. “Fresh” came out

of another room and was standing nearby. Dysart gave the money to the defendant

who then went with “Fresh” into the kitchen. Shortly, the defendant returned with

a plastic bag containing two “rocks” and some “shake” which he gave to the

informant.4 According to the laboratory technician’s testimony, this bag contained

.6 gram of a substance containing cocaine.



               The conversations Lieutenant Kelly heard over the wire were

preserved on tape. Kelly, however, testified that the tapes were of poor quality, the

voices were low, and, because of the street jargon used, he believed the jury would

be able to understand very little of what was on the tapes. At the state’s request,

the tapes were admitted into evidence. The defense did not object. Neither the

state nor the defense requested that the tapes be played for the jury.



               The defense attempted to challenge Dysart’s credibility both during

cross-examination and through a witness who testified concerning his reputation for

being untruthful. The defendant, who could not remember what he was doing on

the dates and times in question, denied that he had ever sold or delivered any

cocaine to Dysart. The defendant’s brother testified that the defendant worked for

him in his pressure washing business and that he was probably working on the

afternoon of June 30. However, he couldn’t remember that day specifically and

had no time cards or pay stubs that confirmed the defendant was at work at the time

in question.




       4
              According to Dysart, “shake” are crumbs that have broken off of the
larger “rocks.”

                                           4
              After deliberating for less than an hour, the jury found the defendant

guilty in both cases.



                            Sufficiency of the Evidence

              The defendant now contends that the evidence presented at trial is

insufficient to support convictions for the sale of cocaine. He argues that the record

contains insufficient corroboration of Dysart’s testimony, and that, at most, the

evidence supports convictions for simple possession.           In conjunction with his

challenge to the sufficiency of the evidence, the defendant contends that the trial

judge misinformed the jury concerning the two tapes and erred in refusing to allow

the jury to hear the tapes once deliberations had begun.



              The state argues that the evidence demonstrates that the transactions

were sales as defined in State v. William (Slim) Alexander, No. 01CO1-9302-CR-

00063, slip op. at 4 (Tenn. Crim. App., Nashville, March 24, 1994), and that the

testimony of Lieutenant Kelly and Anthony Dysart is sufficient to sustain the

convictions. With respect to the tapes, the state argues that because the defense

neither objected at trial nor raised this issue in it’s motionf for new trial, the issue

has been waived. On the merits, the state contends that the trial judge properly

denied the jury’s request to hear the tapes since the defendant never requested that

the tapes be played for the jury during the trial.



              We first address the issue of the tapes. This issue has been waived

pursuant to Tennessee Rules of Appellate Procedure 3(e) for failure to raise the

issue specifically in the motion for new trial.      The defense also failed to make

appropriate objections at trial.     A party who fails to take whatever action is

reasonably available to prevent or nullify the harmful effect of an error at trial is not


                                           5
entitled to relief under our rules. Tenn. R. App. P. 36 (a). This issue, therefore, is

waived.



               However, we choose to address this issue on its merits. Tenn. R.

App. P. 2.



              The defendant first contends that since the tapes were admitted into

evidence, the trial judge wrongfully refused to allow the jury to hear the tapes and

that the trial judge’s remarks were improper comments on the evidence.            The

record discloses that during Lieutenant Kelly’s testimony, the prosecution moved

that the tapes be admitted into evidence. To admit the tape made on June 6,

General Critchlow first asked the police officer, “Okay, would you be willing to make

that exhibit to your testimony?”     After receiving an affirmative response, she

addressed the court saying. “Okay, I would move to make that Exhibit 2.”



              The procedure involving the second tape was even less formal.

General Critchlow said, “I’m going to let you make that Exhibit --- four?” And the

court responded, “It will be made Exhibit 4.” In neither instance did the defense

object to the admission. The record reflects that the tapes were introduced, marked

and filed as exhibits. Neither the state nor the defense asked that the tapes be

played for the jury.



              Approximately 30 minutes after beginning their deliberations, the jury

asked to hear the content of the tapes. The trial judge called the jury into the

courtroom and gave the following instruction:

                     Members of the jury, I understand from the bailiff
              that you have asked for a tape recorder to listen to the
              tapes of the transactions. I’m not going to be able to
              allow you to do that. I want to explain to you why.

                                          6
                     These tapes were not played to you as part of
              the evidence. The testimony was that the tapes were
              inaudible, or you could not -- not inaudible, but they
              could not be understood.

                    Had either side asked that the tapes be played
              anyway, I would have done that. We would have
              played those tapes in court, and, had we done that, I
              would allow you to review those tapes again in the jury
              room.

                     As I previously told you, the only evidence that
              you may consider in this case is the testimony that you
              hear in this courtroom. You did not hear those tapes in
              the courtroom, and, therefore, it is not permissible for
              you to review those outside the courtroom.

                     They were made exhibits, and they were made
              exhibits for identification purposes only. Perhaps I did
              not make that clear. Obviously, I did not, but in any
              even the content of the tapes themselves are not part
              of the evidence in this case, and, therefore, I cannot
              allow you to listen to those. I hope you understand.


Once again, the defense made no objection to the statements of the trial court.



              The trial court did not err in denying the jury access to the contents of

the tapes. It is immaterial whether the tapes themselves were entered into

evidence or were made exhibits for the purpose of identification only. Evidence is

“any species of proof, or probative matter, legally presented at the trial of an issue,

by the act of the parties . . . for the purpose of inducing belief in the minds of the

court or jury as to their contention.”   Black’s Law Dictionary 498 (5th ed.1979)

(citation to cases omitted). Evidence includes “whatever is submitted to a judge or

jury to elucidate an issue, to prove a case, or to establish or disprove a fact in

issue.” State v. Harris, 839 S.W.2d 54, 79 (Tenn.1992), cert. denied, 113 S.Ct.

1368 (1992)(Reid, J., dissenting)(citations to other cases omitted). In this instance,

the contents of the tapes were not in evidence. Neither the state nor the defense

requested that the tapes or any portion thereof be played for the jury. The trial court

properly denied the jury’s request to review the tapes in the jury room.

                                          7
              Furthermore, when the trial judge stated that Kelly had testified that

the tapes were not understandable, he was not commenting on the evidence or

vouching for the credibility of Lieutenant Kelly. He was explaining why he admitted

the tapes for the purpose of identification only. As the contents of the tapes were

not placed in evidence by either party, the trial judge did not err by refusing to allow

the jurors to hear the tapes once deliberations began.



              Contrary to the defendant’s assertions, the tapes were not required

to corroborate the testimony of either Kelly or Dysart. State v. James Moore, No.

6, slip op. at 2 (Tenn. Crim. App., Jackson, Feb. 13, 1991). Lieutenant Kelly

testified to the events he observed and to the statements of the defendant that he

heard over the wire. Dysart testified to the defendant’s activities and to the

incriminating statements that he personally heard the defendant make. Neither

Kelly nor Dysart were accomplices of the defendant, and their testimony requires

no corroboration. State v. Preston Bernard Crowder and Cynthia Diane Southall,

No. 01CO1-9304-CR-00143, slip op. at 5 (Tenn. Crim. App., Nashville, March 14,

1995), perm. app. denied as to Southall (Tenn. 1995).



              We must now consider whether the evidence presented at the trial is

sufficient to support the defendant’s convictions. Since a jury conviction removes

the presumption of innocence with which a defendant is initially cloaked and

replaces it with one of guilt, a convicted defendant has the burden of demonstrating

on appeal that the evidence is insufficient. State v, Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). In determining that sufficiency, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all reasonable or legitimate inferences which may be drawn therefrom. State v.


                                           8
Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to affirm the

conviction if the evidence, viewed under these standards, was sufficient for any

rational trier of fact to have found the essential elements of the offenses beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 115 S.Ct.

743 (1994); Tenn. R. App. P. 13(e).



              To convict a defendant for the sale of cocaine, the state must prove

that the defendant knowingly sold a controlled substance. Tenn. Code Ann. § 39-

17-417(a)(3) (Supp. 1996). The defendant does not dispute the fact that the

baggies contained cocaine, a controlled substance. Nor does he contend that he

acted unknowingly.5 The laboratory technician testified without contradiction that

the two baggies entered into evidence by the state contained, respectively, .1 gram

and .6 gram of a substance containing cocaine. During the first transaction, the

defendant remarked to Dysart that if the police caught him with the cocaine he

would eat it, and in the second transaction, the defendant asked Dysart what he

wanted, and when Dysart told him he wanted a “fifty,”6 he took the fifty dollars and

promptly returned with the appropriate amount of cocaine.          The evidence is

sufficient beyond a reasonable doubt for a rational juror to conclude that the

defendant acted knowingly.



              The defendant contends, however, that the facts in this case do not

prove that the transactions constituted sales. In essence, he argues that as a


       5
        “‘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. . . .” Tenn. Code
Ann. § 39-11-302 (1991).
       6
            Dysart testified that a “fifty” represented a specific amount of
cocaine which could be purchased for that price.

                                          9
“procurer” of the cocaine, he may be convicted only of simple possession. See

State v. Baldwin, 867 S.W.2d 358 (Tenn. Crim. App. 1993). The state argues that

both transactions were sales as defined in State v. William (Slim) Alexander, No.

01CO1-9302-CR-00063, slip op. at 4 (Tenn. Crim. App., Nashville, March 24, 1994).

We agree.



                In Alexander, this court adopted the general definition of “sale” found

at Black’s Law Dictionary 1200 (5th ed. 1979) as “a contract between two parties

by which the seller, in consideration of the payment or promise of payment of a

certain price in money, transfers to the buyer the title and possession of the

property.” State v. William (Slim) Alexander, slip op. at 4. According to this

definition, a sale consists of two broad components: a bargained-for offer and

acceptance, and an actual or constructive transfer or delivery of the subject matter

property. Id.



                The defendant ‘s reliance on State v. Baldwin, 867 S.W.2d 358 (Tenn.

Crim. App. 1993), is misplaced. In Baldwin, this court modified the defendant’s

conviction for selling cocaine to one for possession. Id. at 359. In Baldwin, the

undercover officer offered to give the defendant a ride home. Neither the defendant

nor another man who was riding in the car knew that the driver was a police officer.

Id. When the two men discussed purchasing drugs, the defendant suggested that

they drive to the area where her nephew might have some for sale. When she

spotted her nephew, the other man took a twenty-dollar bill from the officer. Id. He

and the defendant approached a man who accepted the money and handed the

defendant a “rock.” Upon their return to the car, the officer directed the defendant

to give him the rock. When she complied, the officer arrested her. Id. In modifying

the conviction, this court found that, although her actions had facilitated the sale, the


                                           10
fact that she brought the drugs back to the car was insufficient to establish her

intent to participate in the sale.



              In this case, Dysart offered to purchase a certain amount of cocaine

for a given price. The defendant accepted the payments. One who accepts

payment in exchange for property is involved in a sale. State v. David Henning, No.

02C01-9404-CC-00079, slip op. at 5 (Tenn. Crim. App., Jackson, Oct. 26, 1994).

In both transactions, the defendant actually delivered the property for which he had

accepted payment. In Baldwin, on the other hand, the defendant pointed out the

person who was selling drugs, accompanied a third person who had the money to

the transaction, and then carried the controlled substance from the seller to the

undercover officer. The defendant’s actions in this case satisfy the two broad

requirements of a “sale.” In both transactions he accepted an offer and delivered

the property. The evidence in the record is sufficient for a rational juror to conclude

that the defendant participated in a knowing sale of cocaine on June 6 and June 30,

1995.



                                     Sentencing



              The trial court sentenced the defendant to serve 9 years in the

Department of Correction as a Range I offender for the sale of more than .5 gram

of cocaine and to serve a concurrent 7-year sentence for the sale of less than .5

gram of cocaine. The jury imposed a $2,000 fine in each conviction, but the trial

judge waived the fine in No. 10149 and reduced it to $1,000 in No. 10148.



               The defendant complains that his sentence is excessive and that the

trial judge erred by ordering him to serve his sentences in the Department of


                                          11
Correction. He contends that the trial judge ignored the mitigating factors that exist

in this case and refused to assign him to Community Corrections because of

improper factors. We find no error in the trial court’s sentencing determinations and

affirm its judgment.



              When an accused challenges the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d)(1990). 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).    In conducting our de novo review, we must consider the evidence at

sentencing, the presentence report, the sentencing principles, the arguments of

counsel, the statements of the defendant, the nature and characteristics of the

offense, any mitigating and enhancement factors, and the defendant’s amenability

to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (Supp. 1996); State v. Ashby,

823 S.W.2d at 168.



              At the conclusion of the sentencing hearing, the trial judge found that

the three enhancement factors filed by the state were appropriate and that the one

mitigating factor argued by the defense was not. The court found that

              1.       The defendant has a previous history of
                       criminal convictions or criminal behavior
                       in addition to those necessary to establish
                       the appropriate range. Tenn. Code Ann.
                       §40-35-114(1).

              2.       The defendant has a previous history of
                       unwillingness to comply with conditions of
                       release in the community. Tenn. Code
                       Ann. § 40-35-114(8).



                                           12
               3.     The felony was committed while on
                      probation. Tenn. Code Ann. §40-35-
                      114(13).

The trial court made appropriate findings of fact relating to each enhancement factor

and held correctly that each factor was applicable to both convictions.          The

defendant does not question the accuracy of those findings. Nor could he as they

are fully supported by the record. Our review discloses that the record fully supports

the trial court’s factual findings.



               With respect to the mitigating factors, the trial court made no ruling

other than to state the single mitigating factor filed by the defense was not

appropriate. The trial court was referring to the factor found at Tennessee Code

Annotated Section 40-35-113(1): “The defendant’s criminal conduct neither caused

nor threatened serious bodily injury.”    With respect to this factor, this court has

previously held that, although a voluntary sale of cocaine may have the potential for

bodily injury, this mitigating factor was applicable “unless the conduct relates to

serious bodily injury and the factor should be considered in relation to the facts and

circumstances of the particular case.” State v. Johnny Ray Christman, No. 01CO1-

9211-CC-00361 slip op. at 4 (Tenn. Crim. App., Nashville, Sept. 2, 1993). If the

defendant has sold very small quantities to a willing buyer, the factor may well be




                                         13
an appropriate mitigating factor. Id.7 However, this court has refused to apply the

factor where large amounts of cocaine have been involved.8



              The sales in this case involved relatively small amounts of crack

cocaine sold to a willing purchaser. There is no indication that the defendant is a

major dealer or that he was involved in serious drug trafficking. However, even

giving the defendant the benefit of the existence of this mitigating factor, we cannot

say that minimum sentences would be appropriate under the circumstances of this

case. After considering the applicable enhancing and mitigating factors, we hold

that concurrent sentences of nine years and seven years are appropriate.



              The defendant also contends that he should have been sentenced

under the Community Corrections Act of 1985. See Tenn. Code Ann. §§ 40-36-101

through 106 (1991). A sentence under the Community Corrections Act is an

alternative sentence. State v. Charles P. Grigsby, No. 02C01-9507-CR-00184, slip

op. at 4,6 (Tenn. Crim. App., Jackson, January 15, 1997), app. perm. to appeal


       7
             See also State v. Troy Carney and James Andrew Slaughter, No.
01CO1-9412-CR-00425, slip op. at 15 (Tenn. Crim. App., Nashville, Feb. 23,
1996), perm. app. denied (Tenn. 1997)(four counts of selling cocaine); State v.
Angele Franklin, No. 03C01-9402-CR-00061, slip op. at 4 (Tenn. Crim. App.,
Knoxville, Sept. 27, 1995), perm. app. denied (Tenn. 1996)( delivery and
conspiracy to deliver more than .5 gram); State v. James Moore, No. 6, slip op.
at 4 (Tenn. Crim. App., Jackson, Feb. 13, 1991)( sale of one “rock” of crack
cocaine).

       8
                See e.g. State v. Richard Ricardo King, No. 01CO1-9603-CR-
00113, slip op. at 3, (Tenn. Crim. App., Nashville, Feb. 20, 1997) (3 counts of
sale of cocaine over 26 grams); John Derrick Martin, No. 01CO1-9502-CR-
00043, slip op. at 8 (Tenn. Crim. App., Nashville, Dec. 19, 1995), affirmed in
State v. Martin, ___ S.W.2d ___ (Tenn. 1997) (two sales of .5 grams or more
and one of 26 grams or more); State v. Roger D. Pulley, No. 01CO1-9501-CC-
00013 (Tenn. Crim. App., Nashville, Sept. 20, 1995) (more than 26 grams); State
v. Little, 854 S.W.2d 643, 652) (Tenn. Crim. App. 1992); (serious drug
traffickers); Johnny Arwood v. State, No. 335, slip op. at 8-9 (Tenn. Crim. App.,
Knoxville, May 9, 1991), perm. app. denied (Tenn. 1991) (sale or delivery of
more than 2.5 grams).

                                         14
filed, Mar. 14, 1997; Tenn. Code Ann. § 40-35-104(c)(8) (1990). Therefore, we

must first determine whether the defendant is a suitable candidate for alternative

sentencing.



              Especially mitigated or standard offenders convicted of a class C, D,

or E felony and who do not possess a criminal history evincing a clear disregard for

the laws and morals of society and a failure of past efforts at rehabilitation are

presumed to be favorable candidates for alternative sentencing options absent

evidence to the contrary. Tenn. Code Ann. § 40-35-102(5), (6) (Supp. 1996). The

defendant in No. 10148 was convicted of a Class B felony. In No. 10149, he was

convicted of a Class C felony as a Range II, multiple offender. Moreover, the

defendant has a criminal history demonstrating a clear disregard for the laws of

society because the present offense and one earlier offense were committed while

on probation. The defendant has demonstrated his inability to rehabilitate himself.

Hence, he is not presumed to be a favorable candidate for alternative sentencing.9



              We recognize, however, that the trial court did not review the

defendant’s eligibility under the Community Corrections Act. See Tenn. Code Ann.

§ 40-36-101 et seq. Therefore, we consider whether he meets the requirements

of that act. The Community Corrections Act allows trial courts to sentence certain

nonviolent felony offenders, who are neither eligible nor good candidates for

probation, to participate in community-based alternatives to incarceration. Tenn.

Code Ann. §§ 40-36-103,-104 (1990); State v. Meeks, 779 S.W.2d 394, 397-98

(Tenn. Crim. App. 1988); State v. Charles P. Grigsby, No. 02C01-9507-CR-00184,

slip op. at 8 (Tenn. Crim. App., Jackson, January 15, 1997), app. perm. to appeal



      9
                Since the defendant received an actual sentence of nine years, he
is not eligible for probation. Tenn. Code Ann. § 40-35-303(a) (1991).

                                        15
filed, March 14, 1997. An offender who seeks a community correction sentence

must demonstrate that he:

             1.     will be incarcerated in a correctional institution;

             2.     was convicted of property-related or
                    drug/alcohol related felony offenses or
                    other felonies not involving crimes against
                    the person;

             3.     was convicted of felony offenses in which
                    the use or possession of a weapon was
                    not involved;

             4.     does not demonstrate present or past
                    behavior indicative of violence or a
                    pattern of committing violent offenses;
                    and

             5.     was not sentenced to incarceration or on
                    escape at the time the present offenses
                    were committed.

See Tenn. Code Ann. § 40-36-106(a)(1) - (7).



             Upon our review of the record, we conclude that the defendant meets

the minimum eligibility requirements under subsection (a)(1) - (7). However, even

though the defendant meets the requirements of the Act, he is not automatically

entitled to such relief. State v. Grandberry, 803 S.W.2d 706, 707 (Tenn. Crim. App.

1990). If an offender meets the minimum standards, the trial court must apply the

sentencing considerations set forth in Tennessee Code Annotated section 40-35-

103 and the general sentencing guidelines to determine whether a defendant

should be sentenced to Community Corrections. Charles P. Grigsby, slip op. at 10.



             In the present case, the trial court found that confinement of the

defendant is necessary, based upon his history of criminal conduct, to avoid

depreciating the seriousness of the offense and because measures less restrictive

have been unsuccessful. See Tenn. Code Ann. § 40-35-103(1) (1990). A trial


                                        16
court’s findings are binding unless the evidence in the record preponderates against

them. State v. Jones, 802 S.W.2d 221,223 (Tenn. Crim. App. 1990). The record

in this case supports the findings of the trial court. The defendant has a criminal

record that consists of six felony and two misdemeanor convictions. He committed

the present offenses while he was on supervised probation for two drug-related

convictions in Kentucky. The presentence report indicates that he and his wife are

separated and that the last payment of child support was on February 23, 1995. He

owed approximately five thousand dollars in child support arrearage on the day of

sentencing.    Although he has obtained seasonal work at a local nursery, his

employment record is far from exemplary. The defendant does not claim that he is

eligible for Community Corrections based on a special need such as drug or alcohol

abuse.10 He has frequently been given the opportunity to rehabilitate himself in the

community and has been unable to change his life style.



               The defendant’s rehabilitative potential is central to determining

whether he should be assigned to Community Corrections. State v. Charles P.

Grigsby, slip op. at 11. The trial court must decide each case based on its individual

facts and circumstances. Given the trial court’s ability to review the offender’s

demeanor and characteristics first hand, the trial judge is in the best position to

determine whether the offender is likely to succeed in a community corrections

setting. Id.    A felon’s rehabilitation potential and the risk of repeating criminal

conduct play a major role in a court’s sentencing decisions. State v. Johnny Ray

Christman, slip op. at 4-5.   Unless the record fails to support either the factual or

statutory basis for the trial court’s sentencing decision, this court will not interpose




       10
             According to the presentence report, the defendant rates his
mental health as excellent, considers himself to be a moderate drinker, and,
although he has used cocaine in the past, does not presently use illegal drugs.

                                          17
a different sentencing result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).



               The defendant has failed to establish that he is entitled to any form of

alternative sentencing including Community Corrections. The record supports the

trial court’s concern that the defendant was not a good risk considering his previous

lack of success with sentencing alternatives. The judgment of the trial court is

affirmed in its entirety.

                                                  ________________________
                                                  Curwood Witt, Judge


CONCUR:


_______________________
Joseph B. Jones, Judge


_______________________
Gary R. Wade, Judge




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