        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 18, 2012

                 STATE OF TENNESSEE v. JASON LEE BILES

                   Appeal from the Circuit Court for Warren County
                       No. F12833      Larry B. Stanley, Judge


               No. M2011-02090-CCA-R3-CD - Filed December 12, 2012


The Defendant, Jason Lee Biles, appeals as of right from his jury conviction for delivery of
a Schedule II controlled substance, a Class C felony, and the trial court’s subsequent sentence
of ten years. The Defendant contends that the evidence submitted to the jury was insufficient
to support his conviction and that the trial court’s ten-year sentence was excessive and
inconsistent with the Sentencing Act. After reviewing the record and relevant authorities,
we conclude that the evidence is sufficient to support the Defendant’s conviction and that the
trial court’s ten-year sentence is neither excessive nor inconsistent with the Sentencing Act.
We affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Dan T. Bryant, District Public Defender; and Trenena G. Wilcher, Assistant Public Defender,
McMinnville, Tennessee, for the appellant, Jason Lee Biles.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Lisa A. Zavogiannis, District Attorney General; and Joshua T. Crain, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

        This case arises from a controlled drug transaction on July 19, 2010, that took place
in the parking lot of Stewart’s Pharmacy in Warren County, Tennessee. As a result of this
exchange, a Warren County grand jury indicted the Defendant for delivery of less than .5
grams of cocaine, a Class C felony, and delivery of .5 grams or more of cocaine within a
school zone, a Class B felony. The school zone charge was severed from the instant case.

        The trial was held on May 19, 2011. At the trial, Chief Investigator Mark Martin
testified that he had been working for the Warren County Sheriff’s Department for fourteen
years and that he worked in the narcotics division. Chief Martin explained that during his
narcotics investigation he sought out the confidential informant, Lamar Martin, to assist him
in making a controlled buy from the Defendant. Chief Martin testified that Mr. Martin had
previously been indicted for the sale of prescription drugs and had stated that he did not want
to go to jail, so Chief Martin asked him to assist law enforcement in setting up a controlled
buy with the Defendant. Chief Martin explained that Mr. Martin agreed to assist them with
the controlled buy and that he explained the rules of being a criminal informant to Mr.
Martin. Chief Martin testified that Mr. Martin was “wired” with a listening device,
monitored by him and Investigator Jody Cavanaugh, when Mr. Martin called the Defendant
to set up the controlled buy. After the Defendant and Mr. Martin agreed on a location where
the buy was to take place,1 Mr. Martin, Mr. Martin’s wife, and his car were searched, and
Mr. Martin was given fifty dollars for the controlled drug transaction.

        During Mr. Martin’s conversation with the Defendant, he requested that Mr. Martin
bring him some cigarettes when they met to exchange the drugs. So, in route to the controlled
drug buy, Mr. Martin stopped at a BP gas station to purchase the cigarettes the Defendant had
requested. Chief Martin testified that he and Inv. Cavanaugh continued to follow Mr.
Martin, monitoring him the entire time. Mr. Martin and the Defendant finally met in the
parking lot at Stewart’s Pharmacy and Mr. Martin exchanged the money for the drugs. This
transaction took approximately one minute. Chief Martin testified that he and Inv.
Cavanaugh left the parking lot first, before Mr. Martin returned to his car, and they returned
to the predetermined place where they would meet Mr. Martin to retrieve the drugs he had
purchased from the Defendant. Upon his arrival, Mr. Martin presented a rock of cocaine.
Chief Martin testified that he and Inv. Cavanaugh searched Mr. Martin’s car again upon his
return.

        On cross-examination, Chief Martin acknowledged that he could not remember who
searched Mr. Martin’s car prior to the controlled drug buy nor could he remember how long
it took to conduct the search. He admitted that Mr. Martin’s wife was also present during the
controlled buy and that she was searched. Chief Martin also admitted that he and Inv.
Cavanaugh left the Stewart’s Pharmacy parking lot before Mr. Martin but that they only left
the scene after Mr. Martin began walking away from the Defendant’s car.


1
 Initially, Mr. Martin and the Defendant had agreed to meet at the Starlight Apartments, but the Defendant
called Mr. Martin and changed the location to Stewart’s Pharmacy shortly after their initial conversation.

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       Investigator Cavanaugh testified that he had been in law enforcement twenty-six years
and currently worked as an investigator in the Narcotics Division. Inv. Cavanaugh explained
that he was present with Chief Martin when he met with the confidential informant, Mr.
Martin, to search his car and otherwise prepare him for his controlled drug purchase from the
Defendant. He testified that he “wired up” Mr. Martin before the controlled buy that day
and was present during Mr. Martin’s telephone call to the Defendant. Inv. Cavanaugh
explained that, based on his experience as a narcotics officer, he understood that the two men
were meeting because “Mr. Martin was going to purchase a half of a gram of crack cocaine
from [the Defendant].” He testified that he and Chief Martin then followed Mr. Martin to
meet the Defendant and monitored the transaction via the wire that Mr. Martin was wearing.
Inv. Cavanaugh further testified that he observed the Defendant standing beside Mr. Martin’s
car and that he heard the Defendant making the sale on the audio recording. After the sale
was complete, he and Chief Martin returned to the “meeting place” to wait for Mr. Martin.
Upon his arrival, they retrieved the “white rock” from Mr. Martin and placed it in an
envelope for submission to the Tennessee Bureau of Investigations (TBI).

        On cross-examination, Inv. Cavanaugh acknowledged that he searched Mr. Martin’s
wife prior to the controlled buy because, although there were female officers, they did not
have any female narcotics officers. He also admitted that no one searched Mr. Martin again
after the stop at the BP gas station where Mr. Martin purchased the cigarettes that the
Defendant had requested but stated that he observed Mr. Martin exit and return to the car.
Inv. Cavanaugh acknowledged that he did not actually see the Defendant “hand Mr. Martin
any cocaine.” Inv. Cavanaugh stated that Mr. Martin was given fifty dollars to make the
controlled buy. He explained that he wrote Mr. Martin’s statement after the controlled drug
buy and that he simply made a clerical error in noting that Mr. Martin was given forty dollars
to make the controlled buy instead of fifty.

       Agent Mark Young, a forensic science expert employed with TBI, testified that the
substance sent to the TBI for analysis regarding this case was a hard, rock-like substance that
was determined to contain 0.3 grams of cocaine base. He also testified as to the chain of
custody involving this evidence from the time it was sent to TBI until the day of trial.

        Mr. Martin testified that he and the Defendant were once next door neighbors and that
he had known the Defendant since he was about twelve or thirteen years old. He explained
that he was a convicted felon and that he agreed to purchase drugs from the Defendant to
avoid receiving jail time after he was arrested for selling prescription drugs. Mr. Martin
testified that Chief Martin approached him about working as a confidential informant and
that they later had a conversation with the prosecutor in which the prosecutor agreed to
dismiss his charge in exchange for him giving them “specific names of people that [he] knew
were involved in the cocaine trade.” One of the names that Mr. Martin provided was that of

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the Defendant; he also gave law enforcement the Defendant’s phone number. Mr. Martin
testified that on July 19, 2010, he made a telephone call to the Defendant and that it was
monitored by both Chief Martin and Inv. Cavanaugh. The telephone call was then played
for the jury, and Mr. Martin explained to them his somewhat coded conversation with the
Defendant. Mr. Martin testified that their conversation concluded with him agreeing to meet
the Defendant at the Skyline apartments to purchase cocaine. He testified that Inv.
Cavanaugh searched him “thoroughly” before he went to meet the Defendant and that he
understood that they searched him to “make sure [he] didn’t have nothing on [him].” Mr.
Martin then got into his car and headed towards the Skyline apartments with Chief Martin
and Inv. Cavanaugh trailing him approximately three to four cars back the entire time.
During his drive to Skyline Apartments, the Defendant called and asked Mr. Martin to meet
him at a different location, Stewart’s Pharmacy. Mr. Martin agreed and informed law
enforcement of the change in location. Mr. Martin stated that in route to Stewart’s
Pharmacy, he stopped to get the cigarettes that he had agreed to bring for the Defendant; he
insisted that no one gave him any cocaine nor did he otherwise retrieve any cocaine during
this stop.

       The jury found the Defendant guilty of delivery of less than .5 grams of cocaine.

        The sentencing hearing was held on July 13, 2011. At the hearing, the State presented
the testimony of Sally Cantrell, an employee with the Board of Probation and Parole, who
prepared the pre-sentence report in this case. She testified that in her report, she noted the
following statement made by the Defendant: “Informant, phoned to purchase cocaine. I met
with informant and sold cocaine to informant.” Ms. Cantrell also testified as to the
Defendant’s prior, drug-related convictions and stated that the Defendant was on parole for
a conviction involving a Schedule II drug when he committed the offense in the instant case.
On cross-examination, Ms. Cantrell admitted that nothing in the presentence report indicated
that the Defendant was a violent offender or a danger to society other than to the extent that
selling drugs was considered a danger to society.

        The State asked that the trial court apply the following enhancement factors: (1) that
the Defendant had a prior history of criminal convictions in addition to those necessary to
establish him as a Range II offender; (8) that the Defendant before trial or sentencing had
failed to comply with the conditions of a sentence involving release into the community; and
(13) that at the time the felony was committed, the Defendant was released on parole. See
Tenn. Code Ann. § 40-35-114(1), (8), (13). The Defendant, through counsel, pleaded for
leniency; however, the Defendant did not speak on his own behalf.

       After hearing the arguments of counsel, the trial court found that the enhancement
factors requested by the State were applicable. The trial court noted that the Defendant had

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requested that it consider the mitigating factor that the criminal conduct neither caused nor
threatened serious bodily injury. However, the trial court noted that these drugs were
“controlled for a reason” and that it was not certain if it “would give a lot of credence to the
fact that it would not threaten serious bodily injury anyway to ingest cocaine.” The trial court
also noted that the Defendant’s prior record and “the seven different times he has either
violated probation or parole” evince “his unwillingness to comply [or cooperate] with law
enforcement.” Finding that the Defendant’s criminal history “extremely outweigh[ed] all the
other possible mitigating factors and enhancing factors involved” in the case, the trial court
sentenced the Defendant to serve ten years. The trial court denied probation, stating that it
believed the Defendant was “a danger to society, ha[d] shown no ability to be able to stop
passing dangerous controlled substances to other persons for profit” and concluding that it
had “no reason to believe that he c[ould] be rehabilitated at this time.” Finally, the trial court
stated that incarceration was appropriate to serve as a deterrent effect to others in the
community who engage in the same behavior and denied any form of split confinement.

       The Defendant perfected a timely appeal.


                                          ANALYSIS

       The Defendant contends that the State presented evidence that was “rife with
inconsistencies” and that the evidence is insufficient to sustain his conviction. The
Defendant also challenges his ten-year sentence imposed by the trial court, alleging that it
is excessive and inconsistent with the Sentencing Act.


                                I. Sufficiency of the Evidence

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court
does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in
the testimony and drawn all reasonable inferences from the evidence in favor of the state. See
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the
weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997).

       A guilty verdict “removes the presumption of innocence and replaces it with a

                                               -5-
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of [both] direct and
circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). The standard of proof is the same, whether the evidence is direct or circumstantial.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
The duty of this court “on appeal of a conviction is not to contemplate all plausible
inferences in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence
in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

        The Defendant was convicted of the delivery of a Schedule II Controlled Substance
pursuant to Tennessee Code Annotated section 39-17-417. That statute provides, in relevant
part, that it is an offense for a defendant to knowingly . . . deliver a controlled substance. See
Tenn. Code Ann. § 39-17-417(a)(2). “[A] person . . . 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(b). The terms
“deliver” and “delivery” are statutorily defined as “the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not there is an
agency relationship.” Tenn. Code Ann. § 39-17-402(6). Thus, to support the conviction for
delivery of a controlled substance, the State must prove that the Defendant was “aware” that
he was transferring the controlled substance, cocaine, to another person and that the
substance was, in fact, cocaine.

        The evidence presented at trial, viewed in a light most favorable to the State, showed
that on July 19, 2010, Mr. Martin, the confidential informant, bought cocaine from the
Defendant. During a recorded phone conversation with the Defendant, Mr. Martin told the
Defendant that he wanted to buy cocaine, and the Defendant agreed to sell him “.5 [grams
of] crack cocaine.” Inv. Cavanaugh and Chief Martin searched Mr. Martin, his car, and his
wife before they left to meet the Defendant and again after they returned. Mr. Martin
proceeded to the location where he and the Defendant agreed that the exchange would take
place; the officers constantly followed Mr. Martin during the controlled buy. Mr. Martin was
wearing a wire, and the entire controlled buy was recorded. The Defendant met Mr. Martin
in the Stewart’s Pharmacy parking lot, where Mr. Martin gave the Defendant fifty dollars in
exchange for cocaine, per their prior agreement. Agent Young confirmed that the substance
Mr. Martin purchased was, in fact, .3 grams of cocaine.

       Although the Defendant argues that the State’s evidence was “rife with

                                               -6-
inconsistencies,” there was sufficient evidence presented at trial for a rational jury to
conclude that the Defendant delivered less than .5 grams of cocaine to Mr. Martin. The
jury’s verdict indicates that it accredited the testimony of Mr. Martin and resolved all factual
inconsistencies in favor of the State. As such, the Defendant is not entitled to relief on this
issue.

                                        II. Sentencing

        The Defendant contends that his sentence of ten years is excessive and contrary to the
purposes and principles of the Sentencing Act, specifically noting that the enhancement
factors used by the trial court were insufficient to justify the imposition of a sentence “at the
top of the range.” The State responds that the trial court was “impressed” by the Defendant’s
lengthy criminal history and that the Defendant committed the instant offense while on
parole. The State further responds that the trial court followed the purposes and principles
of sentencing when it imposed the ten-year sentence and that the Defendant is not entitled
to relief.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the
nature and characteristics of the criminal conduct involved; (e) evidence and information
offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical
that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated
section 40-35-210(e)” and articulate in the record its reasons for imposing the specific
sentence. See State v. Susan Renee Bise, -- S.W.3d --, No. E2011-00005-SC-R11-CD, 2012
WL 4380564, at *20 n.41 (Tenn. Sept 26, 2012).

       The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing.” Id. at *18. Currently, upon a challenge to the
sentence imposed, it is the duty of this court to analyze the issues under “an abuse of
discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Id. at *17. Those purposes and principles include “the imposition of a
sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code
Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote
respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration of

                                               -7-
a defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code
Annotated section 40-35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). The
burden of showing that a sentence is improper is upon the appealing party. See Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257
(Tenn. 2001).

      Our amended Sentencing Act no longer imposes a presumptive sentence. Carter, 254
S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to provide as
follows:

              (c) The court shall impose a sentence within the range of punishment,
       determined by whether the defendant is a mitigated, standard, persistent,
       career, or repeat violent offender. In imposing a specific sentence within the
       range of punishment, the court shall consider, but is not bound by, the
       following advisory sentencing guidelines:

              (1) The minimum sentence within the range of punishment is the
       sentence that should be imposed, because the general assembly set the
       minimum length of sentence for each felony class to reflect the relative
       seriousness of each criminal offense in the felony classifications; and

               (2) The sentence length within the range should be adjusted, as
       appropriate, by the presence or absence of mitigating and enhancement factors
       set out in §§ 40-35-113 and 40-35-114.

             (d) The sentence length within the range should be consistent with the
       purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d).

        “[T]he 2005 amendments rendered advisory the manner in which the trial court selects
a sentence within the appropriate range, allowing the trial court to be guided by—but not
bound by—any applicable enhancement factors when adjusting the length of a sentence.”
Bise, 2012 WL 4380564, at *17. In accordance with the broad discretion now afforded our
trial court’s sentencing decisions,

              misapplication of an enhancement or mitigating factor does not
       invalidate the sentence imposed unless the trial court wholly departed from the
       1989 Act, as amended in 2005. So long as there are other reasons consistent
       with the purposes and principles of sentencing, as provided by statute, a

                                             -8-
       sentence imposed by the trial court within the appropriate range should be
       upheld.
Id.

        In the instant case, the trial court found that three enhancement factors applied: (1)
that the Defendant had a prior history of criminal convictions in addition to those necessary
to establish him as a Range II offender; (8) that the Defendant before trial or sentencing had
failed to comply with the conditions of a sentence involving release into the community; and
(13) that at the time the felony was committed, the Defendant was released on parole. The
Defendant does not contest their applicability. Additionally, as the authority above indicates,
the trial court is granted a presumption of reasonableness to within-range sentencing
decisions that reflect a proper application of the purposes and principles of our Sentencing
Act. Classified as a Range II offender, the Defendant’s range of punishment was between
six and ten years. Despite his plea for leniency, the trial court sentenced him to the
maximum, noting that the Defendant’s criminal history carried the most weight in its
determination. The trial court imposed a within-range sentence, albeit the maximum, and the
record both supports the trial court’s determination and evinces that the trial court considered
and properly applied the principles and purposes of the Sentencing Act. Therefore, the
Defendant is not entitled to relief on this issue.


                                       CONCLUSION

       Accordingly, the judgment of the trial court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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