             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                    Assigned on Briefs May 16, 2006

                  STATE OF TENNESSEE v. MICHAEL E. BUNTING

                          Appeal from the Criminal Court for Sullivan County
                           No. S48,472, S47,395    Phyllis H. Miller, Judge



                           No. E2005-00321-CCA-R3-CD - Filed July 18, 2006


The Defendant, Michael E. Bunting, was convicted by a Sullivan County jury of possession of less
than .5 grams of cocaine for resale, and he subsequently pled guilty to felony failure to appear.
Following a joint sentencing hearing for these two convictions, the trial court imposed an effective
twenty-one-year sentence as a Range III, persistent offender to be served in the Department of
Correction.1 In this appeal as of right, the Defendant argues that: (1) the evidence is insufficient to
support his cocaine possession conviction, and (2) a sentence of community corrections was
appropriate, and his sentences were improperly enhanced in violation of Blakely v. Washington, 542
U.S. 296 (2004). After a review of the record, the judgments of conviction and resulting sentences
are affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

William A. Kennedy, Assistant Public Defender, Blountville, Tennessee, for the appellant, Michael
E. Bunting.

Paul G. Summers, Attorney General and Reporter; Leslie Price, Assistant Attorney General; H.
Greeley Wells, District Attorney General; and J. Lewis Combs, Assistant District Attorney General,
for the appellee, State of Tennessee.



         1
           On February 3, 2005, the Defendant filed a notice of appeal as to the denial of an alternative sentence for his
felony failure to appear conviction. Following the motion for new trial hearing on his cocaine possession conviction,
he filed a notice of appeal on April 20, 2005, including both offenses. No motion was made to this Court requesting that
the two appeals be consolidated, and we find no order in the record consolidating these two cases. See Tenn. R. App.
P. 16. Nevertheless, the parties have filed their briefs and otherwise treated the two appeals as consolidated. For judicial
economy, and because the appeals involve common questions of law and facts, this opinion will discuss and dispose of
both appeals.
                                             OPINION

                                        Factual Background
        On July 2, 2002, several officers of the Kingsport Police Department conducted a “still
watch” of the residence at 933 Dale Street, following a report of gambling and drug activity in the
area. Around 9:43 p.m., Detective Cliff Ferguson, from a distance of approximately seventy-five
feet and aided by street lights, observed a red Chevrolet Beretta park in front of the Dale Street
residence. The Defendant exited the residence and approached the vehicle. According to Detective
Ferguson, the Defendant engaged in a conversation with a passenger of the car and then returned to
the porch. Shortly thereafter, the Defendant again approached the vehicle, and the passenger got out
of the car. Detective Ferguson testified that the passenger “appeared to have money in his hand and
he had his other hand stuck out like he was going to receive something.” The Defendant “had his
hand cupped again palm facing towards the sky and it appeared that [he] was going through his hand
trying to find just the right thing[.]”

         Believing that a drug transaction was taking place, the officers emerged from their hidden
location and ran toward the men. As the officers approached, the Defendant emptied the contents
of his hand onto the ground and put his hands up in the air. Detective Ferguson observed several
pieces of a white rock substance on the ground in front of the Defendant, which appeared to the
officer to be cocaine. Detective Ferguson arrested the Defendant, and no drugs, drug paraphernalia,
or money were found on the Defendant’s person.

        It was later determined that the substance retrieved from the ground in front of the Defendant
weighed .4 grams and contained cocaine base. According to Detective Ferguson, the “street value”
of the cocaine was between $50 and $100, “depending on the buyer.”

       Sergeant Tim Crawford was also present on the scene and stated that the Dale Street area was
“notorious for open air sales[.]” Sergeant Crawford testified that the passenger of the vehicle was
“holding $50.00 cash.” Following the passenger’s arrest, a glass pipe was discovered on his person
“that was consistent with the smoking of crack cocaine.”

       A Sullivan County grand jury indicted the Defendant for possession of less than .5 grams of
cocaine for resale, a Class C felony. See Tenn. Code Ann. § 39-17-417(c)(2)(A). The Defendant
was subsequently charged by presentment with failing to appear at a hearing on the possession
charge, a Class E felony. See Tenn. Code Ann. § 39-16-609.

        A two-day jury trial on the drug possession charge was held in September of 2004. The
Defendant testified on his own behalf at trial and maintained that, while he did purchase cocaine, he
did not sell any cocaine that night. The Defendant testified that he abused cocaine “on and off” for
fifteen years. The jury found the Defendant guilty as charged.




                                                 -2-
        The Defendant later pled guilty to the failure to appear charge.2 The plea agreement provided
that the sentences for cocaine possession with intent to sell and failure to appear were to be served
consecutively. The trial court was to determine the length of the sentences and the manner of
service.

         A sentencing hearing was held on February 2, 2005. The trial court sentenced the Defendant
as a Range III, persistent offender to fifteen years for the drug conviction and six years for the felony
failure to appear conviction, for a total sentence of twenty-one years. The trial court denied any form
of alternative sentencing, determining that a sentence of total confinement was warranted.
Thereafter, the Defendant filed a motion for new trial, which was denied. This appeal followed.

                                                   ANALYSIS

I. Sufficiency of the Evidence
        First, the Defendant contends that the evidence was insufficient to support his conviction
for possession of less than .5 grams of cocaine for resale, a Class C felony.3 The Defendant does not
dispute that he is guilty of possessing cocaine. He does, however, contend that no facts existed from
which a jury could infer that the cocaine was possessed with the requisite intent for resale.

       Specifically, the Defendant argues that his version of events is more plausible than that of
Officers Ferguson and Crawford. The Defendant asserts that the officers’ testimony is suspect based
upon the following rationale:

         [T]he officers never interviewed anyone at the house they were apparently watching.
         By their own admission, none of the officers considered talking to the residents of the
         house or the other persons who were obviously skulking about the property at 933
         Dale Street.

                 There was no evidence found on the [Defendant] that indicated a sale.
         Furthermore, there was no testimony by the alleged buyer or the other individual in
         the red car. Absent this, there was clearly reasonable doubt that the [Defendant] sold
         drugs. . . .


        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the

         2
          Several other offenses were encompassed within this plea agreement. The Defendant does not raises any issues
regarding the plea agreement or with the sentences related to those other convictions.

         3
         For the sake of clarity, we have re-ordered the issues from the manner in which they were presented by the
Defendant in his appellate brief and have also combined claims that dealt with the same issue.

                                                         -3-
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that 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); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. Carruthers, 35 S.W.3d at 558;
Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier
of fact, and this Court will not re-weigh or re-evaluate the evidence. Evans, 108 S.W.3d at 236;
Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

         A conviction for possession of cocaine for resale requires proof that a defendant knowingly
possessed the substance with the intent to sell. Tenn. Code Ann. § 39-17-417. With regard to a
determination of a defendant’s intent to sell, proof of intent usually consists of circumstantial
evidence and the inferences that can be reasonably drawn from that evidence. See State v. Hall, 490
S.W.2d 495, 496 (Tenn. 1973). Other than an accused stating his or her purpose, intent, or thinking
at the relevant times, the trier of fact is left to determine the mental state by making inferences drawn
from the surrounding circumstances found by it to exist. See, e.g., Poag v. State, 567 S.W.2d 775
(Tenn. Crim. App. 1978). This Court has also held that it is not improper for an officer to testify as
to the common factual distinctions between drug users and drug dealers. See State v. William
Aubrey Trotter, No. 01C01-9701-CR-00019, 1998 WL 75423, at *4 (Tenn. Crim. App., Nashville,
Feb. 24, 1998).

        In the light most favorable to the State, the evidence shows that the officers responded to a
report of gambling and drug activity in the Dale Street area, an area “notorious for open air sales[.]”
The officers observed a vehicle park across from the residence at 933 Dale Street and the Defendant
approach the vehicle, speak with a passenger, and then go back to the residence. The Defendant then
returned to the vehicle, and the passenger exited the vehicle holding $50 in his hand. At this time,
the Defendant sorted through something in his hand. When the officers began to approach the
Defendant, he emptied the contents of his hand onto the ground. The Defendant had no drug
paraphernalia of the type used for consumption of crack cocaine, but the passenger had a glass pipe
on his person. Detective Ferguson found several rocks of crack cocaine on the ground where the
Defendant had been standing. The jury, as was its prerogative, chose to accredit the testimony of
the State’s witnesses and reject the Defendant’s version of events. Accordingly, we conclude that


                                                  -4-
the evidence was sufficient for the jury to find beyond a reasonable doubt that the Defendant
possessed the cocaine with the intent to sell it. See State v. Michael Bills, No. W2005-01107-CCA-
R3-CD, 2006 WL 739851 (Tenn. Crim. App., Jackson, Mar. 22, 2006).

II. Sentencing
        Next, the Defendant challenges two aspects of his sentence. First, he submits that the trial
court erred in finding him ineligible for placement in a program of community corrections.4 Second,
he argues that “the trial court erred in sentencing the [Defendant] to more than the minimum
sentence in accordance with Blakely v. Washington.”

        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; and (f) any statement the defendant wishes to make in the defendant’s own
behalf about sentencing. Tenn. Code Ann. § 40-35-210(b) (2003);5 State v. Imfeld, 70 S.W.3d 698,
704 (Tenn. 2002). To facilitate appellate review, the trial court is required to place on the record its
reasons for imposing the specific sentence, including the identification of the mitigating and
enhancement factors found, the specific facts supporting each enhancement factor found, and the
method by which the mitigating and enhancement factors have been evaluated and balanced in
determining the sentence. State v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. Tenn.
Code Ann. § 40-35-401(d). However, 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). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We
will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported


         4
         The Defendant references case law pertaining to both probation and community corrections. However, the
argument section of his brief does not address probation but focuses solely on the denial of community corrections.
Therefore, this opinion will discuss the denial of community corrections.

         5
          W e note that the legislature has recently amended several provisions of the Criminal Sentencing Reform Act
of 1989, said changes becoming effective June 7, 2005. However, the Defendant’s crimes in this case, as well as his
sentencing, predate the effective date of these amendments. Therefore, this case is not affected by the 2005 amendments,
and the statutes cited in this opinion are those that were in effect at the time the instant crimes were committed.

                                                          -5-
by the record. State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

A. Community Corrections
        The Defendant argues that the trial court erred in failing to grant him a sentence of
community corrections. A defendant who does not possess a criminal history showing a clear
disregard for society’s laws and morals, who has not failed past rehabilitation efforts, and who “is
an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed to
be a favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6) (2003); see also State v. Fields, 40 S.W.3d 435, 440
(Tenn. 2001). The following considerations provide guidance regarding what constitutes “evidence
to the contrary” which would rebut the presumption of alternative sentencing:

       (A) Confinement is necessary to protect society by restraining a defendant who has
       a long history of criminal conduct;

       (B) Confinement is necessary to avoid depreciating the seriousness of the offense or
       confinement is particularly suited to provide an effective deterrence to others likely
       to commit similar offenses; or

       (C) Measures less restrictive than confinement have frequently or recently been
       applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1); see also State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

        Additionally, the principles of sentencing reflect that the sentence should be no greater than
that deserved for the offense committed and should be the least severe measure necessary to achieve
the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(2), (4). The court
should also consider a defendant’s potential for rehabilitation or treatment in determining the
appropriate sentence. Id. § 40-35-103(5).

         The Community Corrections Act was meant to provide an alternative means of punishment
for “selected, nonviolent felony offenders . . . , thereby reserving secure confinement facilities for
violent felony offenders.” Tenn. Code Ann. § 40-36-103(1); see also State v. Samuels, 44 S.W.3d
489, 492 (Tenn. 2001). Pursuant to statute, persons who satisfy all of the following minimum
criteria are eligible for participation in a community corrections program:

       (1) Persons who, without this option, would be incarcerated in a correctional
       institution;




                                                 -6-
        (2) Persons who are convicted of property-related, or drug/alcohol-related felony
        offenses or other felony offenses not involving crimes against the person as provided
        in title 39, chapter 13, parts 1-5;

        (3) Persons who are convicted of nonviolent felony offenses;

        (4) Persons who are convicted of felony offenses in which the use or possession of
        a weapon was not involved;

        (5) Persons who do not demonstrate a present or past pattern of behavior indicating
        violence; [and]

        (6) Persons who do not demonstrate a pattern of committing violent offenses[.]

Tenn. Code Ann. § 40-36-106(a). However, persons who are sentenced to incarceration or who are
on escape at the time of consideration will not be eligible, even if they meet these criteria. Id.

       Persons who do not otherwise satisfy the minimum criteria and who would usually be
considered unfit for probation due to histories of chronic alcohol abuse, drug abuse, or mental health
problems, but whose special needs are treatable and could be served best in the community may be
considered eligible for participation in a community corrections program. Id. § 40-36-106(c).

        Even though an offender meets the requirements for eligibility, he or she is not automatically
entitled to participation in a community corrections program. See State v. Ball, 973 S.W.2d 288,
294 (Tenn. Crim. App. 1998); State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).
Rather, the Act provides that the criteria shall be interpreted as minimum standards to guide a trial
court’s determination of whether that offender is eligible for community corrections. Tenn. Code
Ann. § 40-36-106(d).

       The Defendant was convicted of Class C and E felonies and, based upon his prior felony
convictions, was sentenced as a Range III, persistent offender. Because of his status as a persistent
offender, he receives no presumption in favor of alternative sentencing. See Tenn. Code Ann. § 40-
35-102(6). The Defendant admits that he should not receive presumed status as a favorable
candidate for alternative sentencing, that he has a lengthy criminal history,6 and that he has violated
probation and parole in the past. Nonetheless, he asserts that he should receive a non-incarcerative
sentence because “he has no recent felony convictions. His last felony conviction was in 1996.”
Moreover, he states that he has a drug problem and “[t]his problem could more effectively be
addressed in community corrections than in prison.”



        6
          In addition to having accumulated the five prior felony convictions necessary to establish his status as a
persistent offender, the Defendant’s adult criminal history, which spans twenty-two years, includes another felony
conviction and over thirty misdemeanor convictions.

                                                        -7-
        Arguably, the Defendant’s misdemeanor convictions for assault, resisting arrest, and
disorderly conduct demonstrate a past pattern of behavior indicating violence such as to render him
ineligible for a community corrections sentence. State v. Brian Lee Cable, No. E2005-00608-CCA-
R3-CD, 2006 WL 1381484, at *7 (Tenn. Crim. App., Knoxville, May 19, 2006); but see State v.
Artez L. Moreis, No. W2002-00474-CCA-R3-CD, 2003 WL 1860537, at *15 (Tenn. Crim. App.,
Jackson, Apr. 2, 2003), perm. to appeal denied, (Tenn. Dec. 8, 2003) (concluding that defendant’s
three convictions for simple assault several years earlier did not represent a pattern of violence that
would make him ineligible for community corrections).

        Additionally, under subsection (c) of the Community Corrections Act, if the Defendant is
statutorily ineligible for probation, he is per se ineligible for community corrections on a “special
needs” basis. Tenn. Code Ann. § 40-36-106(c); See also State v. Kendrick, 10 S.W.3d 650, 655
(Tenn. Crim. App. 1999); State v. Grisby, 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997); State v.
Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996); State v. Staten, 787 S.W.2d 934, 936 (Tenn.
Crim. App. 1989). An offender is eligible for probation if he is sentenced to eight years or less and
has not been convicted of certain enumerated offenses. Tenn. Code Ann. § 40-35-303(a) (2003).
The Defendant would be eligible for probation only on the six-year sentence for felony failure to
appear. Regarding his fifteen-year sentence for cocaine possession with intent sell, he would be
ineligible for a community corrections sentence on a “special needs” basis.

        Regardless of eligibility, the record supports the trial court’s finding that the Defendant
would be unlikely to comply with the requirements of a community corrections sentence. We agree
with the trial court that, given the Defendant’s extensive criminal history “that goes for page after
page after page[,]” his drug problem would best be treated in a correctional facility. The Defendant
has a long history of criminal conduct rendering confinement necessary to protect society from
additional criminal behavior by the Defendant. Furthermore, measures less restrictive than
confinement have been repeatedly and unsuccessfully applied to the Defendant. Accordingly, we
agree with the trial court that the Defendant is unsuitable for community corrections. See State v.
Donald E. Bryant, No. E2002-00690-CCA-R3-CD, 2003 WL 934243, at *4 (Tenn. Crim. App.,
Knoxville, Mar. 10, 2003).

B. Blakely issue
       The Defendant, relying upon the United States Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004), argues that his sentence was imposed in violation of his Sixth
Amendment right to a trial by jury.7 The Blakely decision held that any fact that increases a sentence
beyond the “relevant statutory maximum,” defined as the maximum sentence that a judge may
impose without making any additional findings of fact, must be submitted and proved to the jury
beyond a reasonable doubt or admitted by the defendant. Blakely, 542 U.S. at 301-02. Thus,
adherence to Blakely requires that any enhancement factors, other than prior criminal history, can
be applied only if found by a jury or admitted by the Defendant. Id.


         7
           The Defendant does not argue that the trial court improperly applied enhancement factors or that it failed to
consider applicable mitigating factors.

                                                          -8-
        First, the Defendant’s sentence was properly enhanced solely on his prior criminal history.
See Tenn. Code Ann. § 40-35-114(2) (2003). Sentencing enhancement based upon prior criminal
history is not implicated under Blakely. Second, the Tennessee Supreme Court has considered the
impact of the Blakely ruling on Tennessee’s sentencing scheme and has concluded that the Criminal
Sentencing Reform Act of 1989, under which the Defendant was sentenced, does not violate a
defendant’s Sixth Amendment rights. See State v. Gomez, 163 S.W.3d 632, 661 (Tenn. 2005).
Accordingly, the Defendant’s argument on this basis has no merit.

                                            CONCLUSION
        In accordance with the foregoing authorities and reasoning, we conclude that the evidence
is sufficient to support the Defendant’s conviction for possession of less than .5 grams of cocaine
for resale, the trial court’s decision denying the Defendant a sentence of community corrections was
proper, and the Defendant was not sentenced in violation of Blakely v. Washington. Accordingly,
the judgments of the trial court are affirmed.


                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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