         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 18, 2004

             STATE OF TENNESSEE v. JEREMY SHERON HALL
                       a/k/a RODNEY LEE JONES

                    Appeal from the Criminal Court for Sullivan County
                          No. S46,078   Phyllis H. Miller, Judge



                   No. E2003-02946-CCA-R3-CD - Filed February 24, 2005


Convicted by a Sullivan County Criminal Court jury of possession of .5 grams or more of cocaine
with intent to sell, the defendant, Jeremy Sheron Hall, a/k/a Rodney Lee Jones, appeals and
challenges the trial court’s failure to suppress evidence, the admission of hearsay evidence, the
imposition of a $100,000 fine, and the length of the sentence imposed. We affirm the criminal
court’s judgment.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.

Stephen M. Wallace, District Public Defender (at trial); Leslie Hale, Assistant Public Defender (at
trial); and Julie A. Rice, Knoxville, Tennessee (on appeal), for the Appellant, Jeremy Sheron Hall
a/k/a Rodney Lee Jones.

Paul G. Summers, Attorney General & Reporter; Renee Turner, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                The defendant in this case stands convicted of possession of .5 grams or more of
cocaine with the intent to sell or deliver. His conviction stems from his January 21, 2002 arrest in
the parking lot of the Kingsport Inn in Sullivan County. Using a confidential informant, Kingsport
Police Officer Rusty Wallace, Patrolman Kevin Hyatt, Sergeant Tim Crawford, and Detective Sean
Chambers organized a “buy-bust” drug operation aimed at apprehending a suspected drug trafficker
known as “Scientific.” The defendant’s arrest netted several rocks of crack cocaine packaged in a
plastic bag and concealed in the corner of the defendant’s mouth, 70 individually wrapped rocks of
cocaine secreted between the defendant’s buttocks, and a single rock of crack cocaine found in the
console of the gold Chevrolet Malibu that the defendant was driving. The rocks tested positive for
cocaine base, and their collective weight was 15.65 grams.

                Pretrial, the defendant moved to suppress the drugs and a cellular telephone that also
was seized from him. He claimed that the evidence was obtained as the result of an illegal stop and
detention of his vehicle. The trial court conducted a suppression hearing and denied the motion. At
trial, the defendant did not testify or call any witnesses, but the theory of defense, as developed
through cross-examination of state witnesses, was that the state had failed to prove that the defendant
intended to sell or deliver the crack cocaine. The jury was instructed to consider the charged offense
and the lesser included offenses of (a) attempt to possess .5 grams or more of cocaine with intent to
sell or deliver, (b) possession of less than .5 grams of cocaine with intent to sell or deliver, (c)
attempt to possess less than .5 grams of cocaine with intent to sell or deliver, (d) simple possession,
and (e) attempt to casually exchange a controlled substance. The jury rejected the defense theory and
found the defendant guilty of possession of the greater amount of cocaine with intent to sell.

                On appeal, the defendant does not assail the sufficiency of the convicting ev12
dence. Instead, he challenges the correctness of the trial court’s suppression rulings, the admission
at trial of prejudicial hearsay testimony, and the $100,000 fine and 15-year sentence that were
imposed. We consider each of these issues in turn.

                                     I. Suppression of Narcotics

                As developed at the suppression hearing and at trial, see State v. Henning, 975
S.W.2d 290, 299 (Tenn. 1998) (reviewing court is not limited to what transpired at the suppression
hearing; rather, it may consider the entire record, including trial transcripts), the defendant first came
to the attention of the Kingsport Police Department on November 17, 2001, when he was stopped
on Wilcox Drive at approximately 3:20 a.m. by Sergeant Crawford for driving 55 miles per hour in
a 45 miles-per-hour speed zone. The defendant produced a North Carolina driver’s license in the
name of Rodney Jones. A driver’s license check uncovered nothing suspicious, but the vehicle, a
gold Chevrolet Malibu, was registered to a female, Tawana Jenkins. When the defendant explained
that Ms. Jenkins was his girlfriend, the officer issued the defendant a traffic citation and released the
defendant.

                 Some time later, Sergeant Crawford received general information about drug
trafficking in the Johnson City area involving people from North Carolina. One such individual had
the nickname “Scientific.”

                On January 21, 2002, a white male approached Officer Hyatt in the parking lot of the
Kingsport Justice Center. The man said that he could make a drug buy from a person named
“Scientific.” The man explained that he was offering to help because he wanted law enforcement
assistance in securing his wife’s pretrial release from jail. Officer Hyatt testified that he referred the
man to the district attorney’s office regarding bond, but he also told the man he was willing to listen



                                                   -2-
to his information. A hastily convened meeting, held in the library of the Justice Center and attended
by the informant and Officers Wallace, Hyatt, Crawford, and Chambers, ensued.

                Officer Wallace testified that as a prelude to the library meeting, he had been
receiving information for some time from multiple sources, including both law enforcement officers
and confidential informants, that a pair of men from North Carolina had been trafficking in narcotics
in Johnson City. The men had street names, “Black” and “Scientific,” and were reputed to be part
of a larger violent and armed group. A patrol officer, Jim Clark, who had been hearing similar
information, believed that he had previously encountered either “Black” or “Scientific” and had
made a digital photograph of the individual’s driver’s license, which bore the individual’s
photograph. Officer Clark showed his photograph to Officer Wallace who then showed it to one of
his confidential informants; that informant, who had heard of “Scientific” and “Black,” identified
the person in the photograph as “Scientific.”

                At the library meeting, Officer Wallace pressed the new informant for details. The
informant related that he had seen “Scientific” sell drugs in the area of the Kingsport Inn, where the
informant was staying. The informant also said that the dealer drove a newer model gold Chevrolet.
Officer Wallace produced a photographic array and asked the informant if he recognized anyone as
being “Scientific.” Officer Wallace had included in the array the photograph obtained earlier from
Officer Clark, and it was that photograph that the informant identified as “Scientific.” The informant
also ultimately admitted that he had personally purchased drugs from “Scientific” and that the dealer
“would deliver the drugs to his room but he had to go outside and meet him at the car.”

                Based on the informant’s information and his offer to participate in a controlled buy,
the officers organized a “buy-bust.” The plan involved going to the informant’s hotel room at the
Kingsport Inn and making a telephone call to set up the drug transaction. Sergeant Crawford and
Hyatt accompanied the informant inside the hotel room. Because the telephone in the room was not
working, Officer Wallace took the informant to a pay telephone across the street; Officer Wallace
dialed the number and handed the receiver to the informant. The officer heard the informant say that
“this is JT, I need an 8. Yeah, uh, uh, room 155 Kingsport Inn.” When the call terminated, the
informant related that “Scientific” would arrive in 10 minutes.1 The informant returned to the motel
room and stayed with Sergeant Crawford and Hyatt, while Officer Wallace and Detective Chambers
remained outside in their vehicle.

                 Approximately 10 minutes had elapsed when Officer Wallace and Detective
Chambers observed a newer model gold Chevrolet pull into the parking lot. Detective Chambers
testified that as the Chevrolet passed the officers’ position, he saw and could identify the driver of
the vehicle as the individual known as “Scientific” whose photograph Detective Chambers had seen
at the Justice Center. Detective Chambers radioed the hotel room and advised that the vehicle was
headed toward the room.


         1
            As discussed later in this opinion, the trial court did not admit at trial remarks made by the informant after
the call terminated. These statements were, however, introduced at the suppression hearing.

                                                           -3-
                The officers inside the room “peeked” out the window and saw the vehicle backing
into a parking space in front of the room. They opened the motel door and proceeded to either side
of the vehicle, with their guns drawn but not raised. According to Sergeant Crawford, standard
procedure required officers to unholster their firearms when dealing with individuals believed to be
selling drugs and armed. As for why the officers did not remain in the hotel room, Sergeant
Crawford explained that because of safety concerns, they did not send the informant out to the
vehicle to obtain the drugs, and based on the informant’s information, the officers knew that the
defendant would not come to the motel door.

                When Sergeant Crawford reached the driver’s side window, he told the driver to put
the car in “park” and open the door. The defendant shifted the car into “park” but refused to unlock
the door. Instead, he “immediately took his right [hand] and went in between his legs.” Sergeant
Crawford testified that he thought the defendant “was either going for a weapon or hiding evidence
or something so I told him again, repeatedly, open the door, open the door.” Again, the defendant
refused to comply, and at that point, the officers raised their guns and pointed them at the defendant.
Officer Hyatt, who had approached the passenger side, recalled seeing the defendant’s furtive
movement, and therefore pointed his gun at the defendant, screaming for the defendant to raise his
hands, and hitting the car window with his arm.

              Eventually, the defendant unlocked the car door. Sergeant Crawford described what
happened next:

                        Well, believing that he may have been hiding a weapon or
               putting some type of contraband or evidence underneath – stuffing it
               in the seat or under the seat, especially a weapon, I took him out of
               the car, grabbed a hold of him, and put him on the ground. And then
               we patted him down[,] and he was handcuffed.

No weapons were discovered. By that time, Detective Chambers and Officer Wallace had arrived
at the car. One of the officers asked the defendant’s name. The defendant answered, “Lee,” but his
response was garbled. Detective Chambers asked the defendant if he had anything in his mouth, and
when the defendant opened his mouth, the officer spied a plastic bag between the defendant’s cheek
and gum. Detective Chambers then took a key and “raked a plastic baggie out of [the defendant’s]
mouth.” The baggie had rocks in it that appeared to be crack cocaine. Based on that find, Officer
Hyatt began to search the vehicle whereupon he found and seized another plastic baggie with a tan
colored rock in it and a cellular telephone. The third and largest stash of crack cocaine was found
on the defendant’s person at the jail when he was strip searched.

                At the police station, Officer Wallace examined the cellular telephone’s log of calls
received. One of the calls received corresponded to the number of the payphone where the informant
set up the drug buy, and the time listed for that call corresponded to the time the informant placed
the call. Officer Wallace did not ascertain the number assigned to the cellular telephone itself.



                                                 -4-
                 The defendant challenged the seizure of the narcotics and his cellular telephone on
several grounds. He argued that the officers witnessed no traffic infraction justifying the defendant’s
detention on reasonable suspicion or probable cause grounds. He also claimed that the information
relayed by the confidential informant did not supply probable cause to arrest the defendant or
reasonable suspicion to detain him in the motel parking lot. Although implicitly agreeing that the
defendant was violating no traffic laws, the trial court concluded that the officers had probable cause
to arrest and search the defendant based upon the reliability of the informant’s tip and the
informant’s basis of knowledge. Alternatively, the trial court ruled that even if probable cause was
lacking, the officers had reasonable suspicion to investigate the defendant’s presence in the parking
lot and that the defendant’s furtive gestures, as if reaching for a weapon, justified searching him for
a gun.

                Aggrieved by the denial of his suppression motion, the defendant urges this court to
reverse and order the suppression of all evidence, as he writes on appeal, “flowing from the illegal
stop of his car in the parking lot of the Kingsport Inn.”

                We review the trial court’s findings and rulings pursuant to a familiar standard. “[A]
trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Credibility questions,
evaluations of the weight of the evidence, and evidentiary disagreements fall within the trial court’s
province as the trier of fact. See State v. England, 19 S.W.3d 762, 766 (Tenn. 2000); Odom, 928
S.W.2d at 23. The party prevailing in the trial court “is entitled to the strongest legitimate view of
the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences
that may be drawn from that evidence.” Odom, 928 S.W.2d at 23; see State v. Binette, 33 S.W.3d
215, 217 (Tenn. 2000). The trial court’s conclusions of law, however, are reviewed de novo without
a presumption of correctness. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

                The Fourth Amendment of the United States Constitution protects the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures and commands that “no warrants shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized.” U.S. Const. amend. IV. The Tennessee Constitution similarly provides, in relevant part,
that “the people shall be secure in their persons, houses, papers and possessions, from unreasonable
searches and seizures.” Tenn. Const. art. 1, § 7. These constitutional protections “are implicated
only when a police officer’s interaction with a citizen impermissibly intrudes upon the privacy or
personal security of the citizen.” State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). Stated another
way, these constitutional safeguards do not attach to law enforcement activities unless the activities
qualify as a “search” or “seizure” within the meaning of the Fourth Amendment and/or Article 1,
Section 7 of the Tennessee Constitution. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001).

                As we view the matter, it is possible to clear two swaths through the present
constitutional thicket. Traveling along the first path, we encounter the informant’s tip alone and
consider whether the reliability of that tip and the informant’s basis of knowledge supplied probable


                                                 -5-
cause justifying the defendant’s seizure and arrest. Making our way along the second path, we
examine the mere reasonableness of the officers’ suspicion in approaching the defendant in a public
place and reacting to furtive gestures inside the automobile.

                 According to both the Fourth Amendment and Article I, section 7 of the Tennessee
Constitution, “a warrantless search or seizure is presumed unreasonable, and evidence discovered
as a result thereof is subject to suppression unless the State demonstrates that the search or seizure
was conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.”
Yeargan, 958 S.W.2d at 629 (citation omitted). One such exception to the warrant requirement
arises when an arresting officer has “probable cause” to effectuate a warrantless arrest. See State v.
Bridges, 963 S.W.2d 487, 491 (Tenn. 1997) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225
(1964)); State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989). Probable cause in the context of a
warrantless arrest “exists if, at the time of the arrest, the facts and circumstances within the
knowledge of the officers, and of which they had reasonably trustworthy information, are ‘sufficient
to warrant a prudent man in believing that the [defendant] had committed or was committing an
offense.’” Bridges, 963 S.W.2d at 491 (quoting Beck, 379 U.S. at 91, 85 S. Ct. at 225); see State v.
Lewis, 36 S.W.3d 88, 97 (Tenn. Crim. App. 2000) (“Probable cause is ‘a reasonable grounds for
suspicion, supported by circumstances indicative of an illegal act.’”).

                If the arresting officers rely on information from a criminal confidential informant,
they must be able to demonstrate that the informant (1) has a basis of knowledge and (2) is credible
or the information is reliable. See Jacumin, 778 S.W.2d at 436 (adopting two-prong test of Aguilar
v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct.
584 (1969)); Lewis, 36 S.W.3d at 98. On the other hand, “[i]nformation provided by a [known]
citizen/bystander witness . . . is presumed to be reliable, and the prosecution is not required to
establish either the credibility of the informant or the reliability of his information.” State v. Cauley,
863 S.W.2d 411, 417 (Tenn. 1993); see State v. Melson, 638 S.W.2d 342, 354-56 (Tenn. 1982);
Lewis, 36 S.W.3d at 98.

               The defendant in this case complains that the state did not show the informant’s basis
of knowledge or his credibility. In light of the trial court’s findings and our independent review of
the application of those findings to the applicable law, we disagree.

               As for the informant’s basis of knowledge, he related to the investigating officers
personal observations and dealings – first-hand information. The informant identified the dealer
known to him as “Scientific” from a photo spread and had a telephone number to contact the dealer.
The informant’s identification of the man in the photograph as “Scientific” was corroborated by
another informant’s similar identification. The new informant knew that the drug dealer drove a
newer model gold Chevrolet, and the informant had witnessed drug sales by the dealer in the
Kingsport Inn area. Indeed, the informant admitted that he had personally purchased drugs from the
dealer who would drive up to the informant’s motel room but would wait outside in the car. This
evidence clearly demonstrates the informant’s basis of knowledge. See State v. Valentine, 911
S.W.2d 328, 330 (Tenn. 1995) (that informant knew what marijuana looked like and bought


                                                   -6-
marijuana from defendant at cited location and had seen cocaine at cited location was sufficient to
satisfy “basis of knowledge” prong for determining whether probable cause supported issuance of
warrant); State v. Brown, 898 S.W.2d 749, 752 (Tenn. Crim. App. 1994) (informant’s basis of
knowledge firmly established in that he claimed to have purchased drugs that same day from
defendant and apparently arranged a second drug transaction).

               The defendant complains that because the informant gave no time-frame reference
for the drug deals the “basis of knowledge” prong was not satisfied. Clearly, however, the type of
information related by the informant described a current, continuing course of illegal conduct.
“Staleness must be determined on a case-by-case basis.” State v. Norris, 47 S.W.3d 457, 470 (Tenn.
Crim. App. 2000). “When the illegal activity described is ongoing, courts have generally held that
the [information] does not become stale with the passage of time.” State v. Thomas, 818 S.W.2d
350, 357 (Tenn. Crim. App. 1991). The informant did not speak to the officers about some isolated
event; he spoke in terms of protracted and continuous drug dealings, particularly in the area of the
Kingsport Inn.

                As for the informant’s credibility, it is true that the general credibility of an informant
is ordinarily demonstrated by previously provided information that has proven to be reliable. State
v. Moon, 841 S.W.2d 336, 339 (Tenn. Crim. App. 1992) (“Obviously, an informant’s ‘track record’
of providing verified information would be relevant in inferring that the informant is a credible
person.”). There is no evidence of such a “track record” in this case. Nonetheless, the reliability of
the information can satisfy the veracity prong of the Aguilar-Spinelli test.

                 Because of previously acquired information, the officers were able to accurately
gauge the reliability of the information conveyed to them. Sergeant Crawford had performed a
traffic stop in November 2001 of a gold Chevrolet driven by a man who produced a North Carolina
driver’s license. Later, Sergeant Crawford began hearing about drug trafficking in the Johnson City
area involving people from North Carolina and about one such trafficker with the nickname
“Scientific.” Another officer who had been receiving similar information passed along to Sergeant
Crawford a photograph of an individual believed to be either “Black” or “Scientific.” One of
Sergeant Crawford’s known confidential informants then identified the person in the photograph as
“Scientific.” The person who approached Officer Hyatt in the parking lot of the Justice Center on
January 21, 2002, confirmed what the officers had already been hearing, and the person even
identified the same photograph as did Sergeant Crawford’s confidential informant. His information,
thus, satisfied the veracity prong.

                Finally, we note that “independent police corroboration” can compensate for any
perceived deficiencies in either prong. Jacumin, 778 S.W.2d at 436. Virtually all of the informant’s
information had been corroborated beforehand by other law enforcement and non-law-enforcement
sources. Additional corroboration appeared when a person matching the photograph of “Scientific”
arrived in the previously described vehicle shortly after the informant’s call and when the driver
backed the car into a parking space in front of the informant’s room – again, just as previously
described by the informant.


                                                   -7-
                Probable cause, in our opinion, existed for the officers to arrest the defendant, which
ultimately led to the discovery of the contraband. The drugs were not improperly admitted at trial.

                In the event further review should occur in this case, we now turn to the second
rationale for admitting the evidence – the trial court’s alternative holding that even if probable cause
was lacking, the officers had “reasonable suspicion” to investigate the defendant’s presence in the
parking lot and that the defendant’s furtive gestures, as if reaching for a weapon, justified what
followed. In determining whether reasonable suspicion exists, an important consideration is that
reasonable suspicion is a less demanding standard than probable cause because reasonable suspicion
can be established with information that is different in quantity or content than required to establish
probable cause and because reasonable suspicion can arise from less reliable information than
required to show probable cause. See State v. Pulley, 863 S.W.2d 29, 32 (Tenn. 1993) (citing
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)).

                 We first note that calling the initial encounter a traffic stop misses the mark.
According to the testimony, when Officer Hyatt and Sergeant Crawford came out of the motel room,
the defendant was backing into a parking space directly in front of the room. When the officers drew
up next to the vehicle, the engine was running, but evidently the vehicle had already stopped moving.
It is important to remember “that even when police have no basis for suspecting that an individual
has committed or is about to commit a crime, the officer may approach an individual in a public
place and ask questions without implicating constitutional protections.” State v. Daniel, 12 S.W.3d
420, 425 (Tenn. 2000). In addition, an officer may constitutionally approach an individual in a
parked car in a public place, ask questions, and even seek permission for a search as along as the
officer “do[es] not convey a message that compliance with [the officer’s] request[] is required.” Id.
at 426; see Pulley, 863 S.W.2d at 30 (police may approach car parked in a public place and ask for
driver identification and proof of vehicle registration, without any reasonable suspicion of illegal
activity); State v. Wilhoit, 962 S.W.2d 482, 486 (Tenn. Crim. App. 1997). On the other hand, when
an officer stops a moving vehicle or initiates a stop by a show of authority, a seizure invoking the
protections of both the state and federal constitutions has occurred. State v. Randolph, 74 S.W.3d
330, 338 (Tenn. 2002) (defendant was “seized” when officer made a show of authority by activating
the blue lights on his patrol car and instructing defendant to stop).

                In this case, we discern nothing objectionable about the officers approaching the
stopped vehicle. Granted, the officers testified that they had unholstered their firearms as they left
the motel room and were carrying them at their sides; nevertheless, there is no evidence that the
officers displayed their firearms to the defendant when they first approached the car.

               The officers next initiated an investigatory detention of the defendant by instructing
him to place the vehicle in park and open his door. The defendant complied with the order to place
the vehicle in park; he balked, however, at the order to open his car door and made a furtive
movement with his right hand. At that point, the officers displayed their weapons and pointed them
at the defendant.



                                                  -8-
                Considering whether the officers’ actions were reasonable in connection with the
investigatory detention, we note that the officers had information that the target was armed and
dangerous. When a suspected offense typically involves the use of a weapon, frisks have been
regarded as reasonable. Offenses falling into this category include robbery, rape, homicide, and large
scale narcotics trafficking. See State v. Mark Howard Russell, No. E2002-02098-CCA-R3-CD, slip
op. at 4 (Tenn. Crim. App., Knoxville, Aug. 11, 2003); State v. Winn, 974 S.W.2d 700, 703 (Tenn.
Crim. App. 1998). Moreover, the officers testified that they were alarmed by the defendant’s furtive
gestures indicating that he may have been reaching for a weapon. Such circumstances can support
the reasonableness of a protective frisk. See Winn, 974 S.W.2d at 704 (listing various relevant
circumstances, including an “otherwise inexplicable sudden movement toward a pocket or other
place where a weapon could be concealed; an otherwise inexplicable failure to remove a hand from
a pocket; backing away by the suspect under circumstances suggesting he was moving back to give
himself time and space to draw a weapon”).

                Of course, in the context of this case the officers could not perform a weapons frisk
while the defendant remained in the automobile. In our opinion, removing the defendant from the
automobile, placing him on the ground, and conducting a protective frisk was reasonable,
considering the prior information about being armed, the nature of the suspected crime, and the
defendant’s inexplicable sudden movement toward the car seat where a weapon could have been
concealed. Officers need not jeopardize their own safety for the sake of expediting a legitimate
investigation. See Knowles v. Iowa, 525 U.S. 113, 117, 119 S. Ct. 484, 488 (1998) (for the purpose
of officer safety, both the driver and passenger may be ordered out of a vehicle in the course of a
routine traffic stop); Terry v. Ohio, 392 U.S. 1, 23-26, 88 S. Ct. 1868, 1881-83 (1968) (limited
pat-down search permissible upon a showing that such action is justified to protect the officer).

                We must now examine the reasonableness of the officers’ actions following the frisk.
Sergeant Crawford testified, “I took him out of the car, grabbed a hold of him, and put him on the
ground. And then we patted him down[,] and he was handcuffed.” There is no evidence, however,
in the record that the defendant was armed or that the officers discovered anything as a result of the
protective frisk. In the typical situation, the protective frisk uncovers something justifying further
investigation or an attendant arrest. Sergeant Crawford did not explain why he handcuffed the
defendant after the frisk disclosed no weapons. Without more, we do not believe that the officers
were justified in handcuffing the defendant, thereby effecting a full-blown arrest. See State v.
Antonio T. Seay, No. M2002-02129-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App., Nashville, July
11, 2003) (“We agree that handcuffing the defendant was not justified by a reasonable suspicion to
stop and question the defendant.”).

                 That said, the discovery of the first cocaine rocks occurred when the defendant gave
a garbled response after being asked his name. The garbled response prompted Detective Chambers
to inquire if the defendant had anything in his mouth, at which point the defendant opened his mouth.
Detective Chambers spied the plastic bag and “raked” it out of the defendant’s mouth. That seizure
set in motion the discovery of the other cocaine. We find it impossible to fathom that the officers
in this case would not have asked the defendant his name in connection with an investigative


                                                 -9-
detention. That is, regardless whether the defendant was handcuffed or standing outside the vehicle
after having been frisked, the officers undoubtedly would have undertaken to ascertain the
defendant’s identity, at which point the cocaine in his mouth “inevitably” would have been
discovered. See State v. Cothran, 115 S.W.3d 513, 525 (Tenn. Crim. App. 2003), perm. app. denied
(Tenn. 2003) (under inevitable discovery doctrine, illegally obtained evidence is admissible if the
evidence would have otherwise been discovered by lawful means) (citing Nix v. Williams, 467 U.S.
431, 444, 104 S. Ct. 2501, 2509 (1984)).

              Consequently, for the foregoing reasons, we affirm the trial court’s ruling that the
evidence was not subject to suppression.

                                       II. Cellular Telephone

                 As a separate issue, the defendant objects to the trial court’s admission of a cellular
telephone based on what he claims was a failure in the chain of custody. This issue need not detain
us long inasmuch as the defendant has waived consideration of this claim. We note that the record
discloses some confusion as to which officer initially found the cellular telephone, but the defendant
failed to object to admission of the item until after it had been introduced. Indeed, the defendant did
not register an objection until after the state had rested its case. Under the circumstances, the failure
to voice a contemporaneous objection waives the issue. See, e.g., State v. Burton, 751 S.W.2d 440,
448 (Tenn. Crim. App. 1988) (failure to make contemporaneous objection to evidence resulted in
waiver of issue); State v. Davis, 741 S.W.2d 120, 124 (Tenn. Crim. App. 1987) (failure to object to
evidence “until after it was all placed before the jury” resulted in waiver of issue); see also Tenn. R.
App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to prevent
or nullify the harmful effect of an error.”)

                                      III. Hearsay Statements

              In his next issue, the defendant complains that the trial court erroneously admitted
hearsay statements made by the informant even though it had previously ruled such statements
inadmissible.

                The informant did not testify in the case, and during Officer Wallace’s testimony, the
state sought to elicit that the informant had told the officers that he could buy drugs from a person
known as “Scientific.” The defense registered a hearsay objection, and following a jury-out hearing,
the court ruled that the state could not admit the informant’s remarks to the officers. Thereafter, the
state sought to elicit what Officer Wallace heard the informant say during the telephone call to set
up the drug buy and to elicit that after the call, the informant told Officer Wallace that the subject
would be at the motel in ten minutes and would be driving a gold car. After another jury-out hearing,
the court ruled, “[Y]ou can’t say he said he’d be here in ten minutes and he’ll be driving a gold car.”
The court also told the state that Officer Wallace could not discuss the name “Scientific.”



                                                  -10-
                The defendant insists that the trial court ruled that no mention could be made of the
contents of the informant’s portion of the telephone conversation from the pay phone; the state,
according to the defendant, then deliberately led Officer Wallace back into hearsay territory
regarding the informant’s end of the conversation. The record shows that Officer Wallace testified,
“[O]nce the number was dialed he had, I heard him say ‘This is J-T, I need an eight. Yeah, uh-huh,
room 115 Kingsport Inn.’” Officer Wallace did not mention the name “Scientific” or attribute to the
informant the statements that the dealer would arrive in 10 minutes and be driving a gold car.

               Our review of the record persuades us that the trial court never excluded as
inadmissible hearsay the informant’s portion of the pay telephone conversation. The defendant is
simply wrong on that account. Moreover, we note that the defense registered no contemporaneous
objection, hearsay or otherwise, to the allegedly offending testimony. The issue, consequently, has
been waived. See Tenn R. Evid. 103(a)(1); Tenn. R. Crim. P. 36(a); see also State v. Sutton, 562
S.W.2d 820, 825 (Tenn. 1978). Further, hearsay testimony is probative unless proper objection is
made to it. State v. Harrington, 627 S.W.2d 345, 348 (Tenn. 1981).

                Even had a proper hearsay objection been registered, in our view the informant’s end
of the telephone conversation is not hearsay. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Tenn. R. Evid. 801(c). We conclude that the informant’s end of the conversation, as
repeated by Officer Wallace, was not offered to prove the truth of the matters asserted. Faced with
a similar situation in State v. Jaman T. Booker, No. 03C01-9607-CC-00273 (Tenn. Crim. App.,
Knoxville, June 24, 1997), the court ruled that the confidential informant’s statements “were clearly
made for the purpose of providing the defendant, a willing drug dealer, with a customer and merely
depicted one side of a drug transaction.” Id., slip op. at 4. The same holds true in this case, and the
defendant is entitled to no relief on his hearsay claim.

                                           IV. Sentencing

                                          A. $100,000 Fine

                 Turning next to his sentencing hearing, the defendant objects to the trial court’s
approval of the jury-levied fine in the amount of $100,000. He complains that he has no current
ability to pay such a fine and that his prospects for future employment upon release are poor. He also
argues that his offense was not so egregious as to warrant such a large fine.

               Appellate review clearly extends to the imposition of fines. State v. Bryant, 805
S.W.2d 762, 767 (Tenn. 1991). When an offense is punishable by a fine in excess of $50, it is the
jury’s responsibility to set a fine, if any, within the ranges provided by the legislature. See Tenn.
Code Ann. § 40-35-301(b) (2003). The trial court, in imposing the sentence, shall then impose a fine
in an amount not to exceed the fine fixed by the jury. See id.




                                                 -11-
                The trial court’s imposition of a fine is to be based upon the factors provided by the
1989 Sentencing Act, which includes the defendant’s ability to pay the fine. See State v. Marshall,
870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). A defendant’s ability to pay, however, is not the
controlling factor. State v. Butler, 108 S.W.3d 845, 853 (Tenn. 2003). A fine, in other words, “is
not automatically precluded because it works a substantial hardship on the defendant; it may be
punitive in the same fashion incarceration may be punitive.” State v. Jimmy Wayne Perkey, No.
E2002-00772-CCA-R3-CD, slip op. at 5 (Tenn. Crim. App., Knoxville, Aug. 12, 2003), perm. app.
denied (Tenn. 2003). Other relevant factors include prior history, potential for rehabilitation, and
mitigating and enhancing factors that are relevant to an appropriate overall sentence. See State v.
Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App. 1997). The seriousness of a conviction offense
may also support a punitive fine. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App.
1996).

               We find no objection by the defendant at the time of sentencing to the fine that the
jury imposed and no proof or argument why the court should not approve the fine. The amount of
the fine was included as a ground in the new trial motion, but defense counsel did not argue the
issue. The trial court briefly mentioned the fine in denying the motion for new trial; it noted the
large amount of cocaine involved and the defendant’s youth and apparent good health. On appeal,
the defendant merely argues that his future prospects for employment are not good and that the value
of the cocaine – as opposed to the amount – is not so egregious as to support the fine.

                 In our estimation, the defendant has not shouldered his burden on appeal to show why
the fine is excessive. See Butler, 108 S.W.3d at 852. The defendant’s criminal history and the
seriousness of the offense adequately support the punitive nature of the fine assessed. In addition,
the trial court found the defendant’s credibility to be nonexistent, as illustrated by the defendant’s
testimony at sentencing that he possessed the 15.65 grams of crack cocaine for personal use. The
court specifically found that the defendant was “untruthful, doesn’t take responsibility for his
actions” and that “[i]t’s a totally unbelievable, incredible story he’s testified to today, under oath.”
Given the circumstances, we find no error or abuse of discretion in the imposition of the fine in this
case.

                                   B. 15-Year Range II Sentence

               For his last issue, the defendant complains that the length of his sentence is excessive.
He does not challenge the trial court’s application of enhancement factors for prior criminal history
and prior unwillingness to comply with release conditions. See Tenn. Code Ann. § 40-35-114(2),
(9) (2003). Additionally, he does not advocate a particular sentence but argues in general terms that
his sentence should have been “mitigated downward” because his conduct did not threaten or cause
serious bodily injury.

               When, as in this case, a defendant complains that he was improperly sentenced, it is
the duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). This


                                                 -12-
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); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). “The burden of
showing that the sentence is improper is upon the appellant.” Ashby, 823 S.W.2d at 169. In the
event the record fails to demonstrate the required consideration by the trial court, review of the
sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
court must affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court
determines the range of sentence and then determines the specific sentence and the propriety of
sentencing alternatives by considering (1) the evidence, if any, received at the trial and the sentencing
hearing, (2) the presentence report, (3) the principles of sentencing and arguments as to sentencing
alternatives, (4) the nature and characteristics of the criminal conduct involved, (5) evidence and
information offered by the parties on the enhancement and mitigating factors, (6) any statements the
defendant wishes to make in the defendant’s behalf about sentencing, and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b) (2003); 40-35-103(5) (2003);
State v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

              In the present case, the trial judge made appropriate reference to the principles of
sentencing and expressed specific findings of fact. We, therefore, accord to her judgment the
presumption of correctness.

               As a Range II multiple offender convicted of a Class B felony, the defendant faced
a sentencing range of 12 to 20 years. See Tenn. Code Ann. § 40-35-112(b)(2) (2003). The
defendant’s 15-year sentence exceeds the presumptive minimum sentence by three years. The
defendant complains that the trial court improperly overlooked, as a mitigating factor, that his
conduct “neither caused nor threatened serious bodily injury,” see id. § 40-35-113(1) (2003), and he
relies upon State v. Ross, 49 S.W.3d 833 (Tenn. 2001), as rejecting a per se exclusion of this
mitigating factor in drug cases. As we shall explain, we find no reason to disturb the trial court’s
sentencing determination.

               First, we do not interpret the trial court’s remarks during sentencing as adopting a per
se exclusion of the disputed mitigating factor. The trial court explained,

                        Mitigating factors, number one is criminal conduct neither
                caused nor threatened serious bodily injury. Jury found him guilty of
                possession with intent to distribute. He had a large, extremely large
                amount of cocaine on him, crack cocaine. I don’t think that that
                mitigating factor would apply. But if it does, because it’s a Schedule



                                                  -13-
                II drug and the amount, I give it very, very little weight; a negligible
                amount of weight.

                The trial court’s ruling also does not run afoul of Ross. Indeed, in Ross the supreme
court stated,

                Although cocaine itself may well be, in the words of the trial court,
                an “inherently addictive and dangerous substance,” this fact alone
                says nothing about the appellant’s criminal conduct, which was
                constructive possession of the substance located in a room several
                doors down from where the officers initially found the appellant.
                Moreover, we see no evidence in the record that the appellant actually
                sold or attempted to sell the drug at the time of the offense. Had
                either of these circumstances been present, then the dangerous nature
                of the drug, combined with the dangerous nature of many drug
                transactions, may have indeed supported the trial court’s rejection of
                this factor as constituting a threat of serious bodily injury.

                        . . . [W]e conclude that when, as here, (1) the conviction for
                possession is based only upon constructive possession, and (2) the
                threat of serious bodily injury is more conceptual than real, little
                justification exists in having a per se rule that excludes consideration
                of this mitigating factor. . . .

                        However, in rejecting a per se exclusion of this mitigating
                factor in cocaine possession cases, we do not require that this factor
                be accorded any especial significance in a given case.

Id. at 848.

                 By contrast, the defendant in this case was convicted of actual, not constructive,
possession of a large amount of cocaine with intent to sell or deliver. Moreover, when arrested, the
defendant was in the midst of an attempted sale of cocaine. Under the circumstances, we find no
error in the trial court’s rejection of this mitigating factor as constituting a threat of serious bodily
injury and no error in its alternative ruling assigning marginal weight to the factor, should it apply.
See State v. Michael Andrae Holman, No. M2002-01471-CCA-R3-CD, slip op. at 7 (Tenn. Crim.
App., Nashville, July 23, 2003) (even if the mitigating factor that conduct neither caused nor
threatened serious bodily injury applied, it was entitled to very little weight due to substantial amount
of cocaine involved and proof that defendant intended to sell the cocaine).

               Now, having performed our statutory de novo analysis of the length of the sentence,
we must take into account the impact of the federal constitutional guarantee of the right to jury trial.
See U.S. Const. amend VI.


                                                  -14-
                In Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), the United States
Supreme Court held that the defendant’s constitutional rights to a jury trial were violated when the
trial judge, based upon facts he found without the aid of a jury, imposed a sentence in excess of the
“maximum” he could have otherwise imposed under state law “without the challenged factual
finding.” Id. at ___, 124 S. Ct. at 2536-38. The “maximum” sentence for purposes of Blakely “is
the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” Id. at ___, 124 S. Ct. at 2537 (emphasis in original). The
statutory maximum the court may impose is the maximum “he may impose without any additional
findings.” Id., 124 S. Ct. at 2537 (emphasis in original). “When a judge inflicts punishment that the
jury’s verdict [or guilty plea] alone does not allow, [a] jury has not found all the facts ‘which the law
makes essential to the punishment,’ and the judge exceeds his proper authority.” Id., 124 S. Ct. at
2537 (citation omitted). The single exception to this rule is that state law may authorize a trial judge
to increase a sentence beyond the minimum based upon “the fact of a prior conviction.” Id. at ___,
124 S. Ct. at 2536; see Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362 (2000).

               Pursuant to Blakely and Apprendi, sentence enhancement, such as the trial court
performed in this case, based upon section 40-35-114’s factor (9) of prior unwillingness to comply
with release conditions requires a jury finding. Accordingly, this factor should be disregarded.

                The other sentencing enhancement factor in this case for prior criminal history, Tenn.
Code Ann. § 40-35-114(2) (2003), survives pursuant to Blakely and Apprendi, as an exception to the
requirement of a jury finding. The record in this case shows that the defendant was convicted, inter
alia, in 1996 of two counts of felony robbery with a dangerous weapon. Evidently, these convictions
were used to classify the defendant as a Range II multiple offender. See Tenn. Code Ann. § 40-35-
106(a)(1), (b)(4) (2003). When the state filed its notice of intent to seek enhanced punishment, it
listed the two robbery convictions and a 1993 conviction for misdemeanor possession of marijuana
in West Virginia. Our review of the presentence report discloses that the defendant also has two
convictions for criminal impersonation and a conviction for driving with a revoked license in 2002.
Considering the defendant’s conviction offense in this case, these prior convictions – particularly
the prior drug conviction – are entitled to substantial weight, justifying the imposition of a 15-year
sentence.

                We, therefore, decline to disturb the ultimate sentencing decisions made by the trial
court.

                                            V. Conclusion

                In accordance with the foregoing, we hold that the trial court properly denied the
defendant’s suppression motion, did not permit the introduction of inadmissible hearsay, and
committed no reversible error in sentencing the defendant. The judgment of the trial court is,
therefore, affirmed.




                                                  -15-
       ___________________________________
       JAMES CURWOOD WITT, JR., JUDGE




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