        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 16, 2013

                  STATE OF TENNESSEE v. HAROLD LYONS

                 Appeal from the Criminal Court for Davidson County
                    No. 2012-A-105     Cheryl Blackburn, Judge


               No. M2012-02489-CCA-R3-CD - Filed November 20, 2013


In May 2010, the Defendant, Harold Lyons, was indicted for possession of drug
paraphernalia, a Class A misdemeanor, and selling less than .5 grams of cocaine within 1,000
feet of an elementary school, a Class B felony. See Tenn. Code Ann. §§ 39-17-417, -425,
-432. Following a jury trial, the Defendant was convicted of possession of drug
paraphernalia and the lesser-included offense of facilitation of the sale of less than .5 grams
of cocaine, a Class D felony. See Tenn. Code Ann. § 39-11-403. The trial court sentenced
the Defendant as a Range III, persistent offender, to an effective ten-year sentence to be
served in confinement. In this appeal as of right, the Defendant contends (1) that the
evidence was insufficient to sustain his conviction for facilitation of the sale of less than .5
grams of cocaine and (2) that the trial court erred by denying the Defendant’s request for an
alternative sentence. Discerning no error, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN and R OGER A. P AGE, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the appellant, Harold Lyons.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Bradshaw, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Stacey Smith,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                FACTUAL BACKGROUND
        On March 2, 2010, members of the Metropolitan Nashville Police Department
(MNPD) conducted an undercover drug buy using a paid “cooperating individual,” George
Hemphill. Mr. Hemphill was searched to ensure that he had no money or contraband on him
and was given an audio “wire” and “buy money,” which consisted of a twenty-dollar bill that
had been previously photocopied in order to record its serial number. Mr. Hemphill was then
sent to a “high crime area” in order to purchase twenty dollars worth of cocaine.

       As Mr. Hemphill walked down the street, he approached William Phillips, Jr. and
asked him if he knew where he could buy some cocaine. Mr. Phillips pointed Mr. Hemphill
towards a parked car in which Quanesha Underwood and the Defendant were sitting. Mr.
Phillips testified at trial that he saw Mr. Hemphill approach the driver’s side of the car where
Ms. Underwood was sitting, but he did not see the drug buy. Mr. Hemphill testified that he
went to the passenger’s side of the car and had no contact with Ms. Underwood. According
to Mr. Hemphill, he gave the Defendant the buy money in exchange for a rock of crack
cocaine. Mr. Hemphill testified that the rock was “kind of short” for a “twenty.”

       After Mr. Hemphill had completed the drug buy, he gave the MNPD officers the
“takedown signal” and “fast walked” back to the officer in charge of the operation. Mr.
Hemphill gave the purchased rock to the officer and was searched again. No other drugs
were found on Mr. Hemphill during this second search. Mr. Hemphill testified that he had
never met Mr. Phillips, Ms. Underwood, or the Defendant prior to March 2, 2010. The rock
was later sent to the Tennessee Bureau of Investigation (TBI) for analysis and was
determined to be .1 grams of cocaine. It was also established at trial that the offense
occurred approximately 705 feet from J.C. Napier Elementary School, which was an
operational elementary school on the date of the offense.

       Mr. Phillips, Ms. Underwood, and the Defendant were all arrested after Mr. Hemphill
gave the “takedown signal.” When the Defendant was arrested, he had the twenty-dollar bill
used as the buy money lying in his lap. A search of the Defendant revealed a set of digital
scales and approximately $860 in small denominations. However, no drugs were found on
the Defendant. Ms. Underwood had $1,365 in cash and 42.6 grams of marijuana in her purse
when she was arrested. A search of Mr. Phillips revealed that he had .2 grams of cocaine and
4.5 grams of marijuana on him. Mr. Phillips testified that he purchased the marijuana from
Ms. Underwood earlier that day and that he got the cocaine “from somewhere else.” Mr.
Phillips also testified that Ms. Underwood did not sell cocaine.

       Based upon the foregoing evidence, the jury convicted the Defendant of possession
of drug paraphernalia and the lesser-included offense of facilitation of the sale of less than
.5 grams of cocaine. Following a sentencing hearing, the trial court determined that the
Defendant had five prior felony convictions, as well as six prior misdemeanor convictions,

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and that the Defendant had a previous parole violation and two prior probation violations.
See Tenn. Code Ann. § 40-35-114(1), (8). The trial court concluded that these factors
outweighed the fact that the Defendant’s crime neither caused nor threatened serious bodily
injury. See Tenn. Code Ann. § 40-35-113(1). As such, the trial court imposed an effective
ten-year sentence. The trial court denied the Defendant’s request for an alternative sentence
because the Defendant had “a long history of criminal conduct” and because measures less
restrictive than confinement had frequently been applied unsuccessfully to the Defendant.

                                        ANALYSIS

                               I. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his conviction
for facilitation of the sale of less than .5 grams of cocaine. The Defendant argues that the
evidence was insufficient because there was no proof he “ever possessed any illicit
substance.” The State responds that the evidence was sufficient.

        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). This
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
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). A guilty verdict “may not be based solely upon
conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d 125, 129
(Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s proof be
uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Put
another way, the State is not burdened with “an affirmative duty to rule out every hypothesis
except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 326.

      Our supreme court has held that circumstantial evidence is as probative as direct
evidence. State v. Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). As such, “direct and

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circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. The reason for this is because with both direct and circumstantial
evidence, “a jury is asked to weigh the chances that the evidence correctly points to guilt
against the possibility of inaccuracy or ambiguous inference . . . [and] [i]f the jury is
convinced beyond a reasonable doubt, we can require no more.” Id. at 380 (quoting Holland
v. United States, 348 U.S. 121, 140 (1954)). To that end, 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).

         It is an offense for a defendant to knowingly manufacture, deliver, sell, or possess
with the intent to manufacture, deliver, or sell cocaine. Tenn. Code Ann. § 39-17-417(a).
It is a Class C felony to commit any of these acts when the amount of the cocaine is less than
.5 grams. Tenn. Code Ann. § 39-17-417(c)(2)(A). A person commits facilitation of a felony
when “knowing that another intends to commit a specific felony, but without the intent
required for criminal responsibility under [Tennessee Code Annotated section] 39-11-402(2),
the person knowingly furnishes substantial assistance in the commission of the felony.”
Tenn. Code Ann. § 39-11-403(a). Facilitation “is an offense of the class next below the
felony facilitated.” Tenn. Code Ann. § 39-11-403(b).

        Both the Defendant and Ms. Underwood were sitting in the car when Mr. Hemphill
approached them to purchase twenty dollars worth of crack cocaine. Mr. Hemphill testified
he walked up to the Defendant and exchanged the twenty-dollar bill for a rock that later TBI
analysis established to be .1 grams of cocaine. Mr. Phillips testified that Mr. Hemphill
approached Ms. Underwood’s side of the car, but he did not see the drug buy. The buy
money was found lying in the Defendant’s lap when he was arrested after the transaction.
While no drugs were found on the Defendant, he did have a set of digital scales and over
$800 in small denominations on him at the time of his arrest. Accordingly, we conclude that
this evidence was sufficient to sustain the Defendant’s conviction for facilitation of the sale
of less than .5 grams of cocaine.

                                  II. Alternative Sentencing

       The Defendant contends that the trial court erred by denying his request for an
alternative sentence. The Defendant argues that despite his status as a persistent offender
“his amenability to alternative sentencing remained intact.” The State responds that the trial
court did not abuse its discretion in denying the Defendant’s request for an alternative
sentence.




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       On appeal, the burden is on the defendant to show that the sentence is improper.
Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts. Our supreme court has held
that an “abuse of discretion standard, accompanied by a presumption of reasonableness,
applies to within-range sentences that reflect a decision based upon the purposes and
principles of sentencing, including the questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012).

        The Defendant was eligible for probation because the “sentence actually imposed
upon [him was] ten (10) years or less.” Tenn. Code Ann. § 40-35-303(a). Thus, the trial
court was required to automatically consider probation as a sentencing option. Tenn. Code
Ann. § 40-35-303(b). However, no criminal defendant is automatically entitled to probation
as a matter of law. State v. Davis, 940 S.W.2d 558, 559 (Tenn. 1997). The defendant has
the burden of establishing his or her suitability for full probation. See State v. Boggs, 932
S.W.2d 467, 477 (Tenn. Crim. App. 1996). The defendant must demonstrate that probation
will “subserve the ends of justice and the best interests of both the public and the defendant.”
Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v.
Hooper, 29 S.W.3d 1, 9-10 (Tenn. 2000). Additionally, the Defendant was not considered
to be a favorable candidate for alternative sentencing under the Sentencing Act because he
was classified as a Range III offender. Tenn. Code Ann. § 40-35-102(6) (limiting the
consideration as a favorable candidate for alternative sentencing to especially mitigated or
standard offenders convicted of Class C, D, or E felonies and “in the absence of evidence to
the contrary”).

       In determining any defendant’s suitability for alternative sentencing, the trial court
should consider whether

       (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)(A)-(C). A trial court should also consider a defendant’s
potential or lack of potential for rehabilitation when determining if an alternative sentence
would be appropriate. Tenn. Code. Ann. § 40-35-103(5); State v. Boston, 938 S.W.2d 435,
438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial court should

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impose a sentence that is “no greater than that deserved for the offense committed” and is
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

       To begin, we note that the Defendant was not initially considered to be a favorable
candidate for alternative sentencing because he was a Range III, persistent offender.
Furthermore, the record reflects that the Defendant had a lengthy criminal history including
five prior felony convictions and six prior misdemeanor convictions. As such, there was
sufficient evidence for the trial court to conclude that confinement was “necessary to protect
society by restraining a defendant who has a long history of criminal conduct.” Additionally,
the Defendant had previously committed two probation violations and one parole violation.
Therefore, measures less restrictive than confinement had been frequently applied to the
Defendant without success. Based upon the foregoing, we conclude that the trial court did
not abuse its discretion in denying the Defendant’s request for alternative sentencing.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.




                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE




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