            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                          JANUARY 1999 SESSION
                                                          April 8, 1999

                                                      Cecil W. Crowson
                                                     Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    C.C.A. NO. 01C01-9706-CC-00210
            Appellee,             )
                                  )    LEWIS COUNTY
VS.                               )
                                  )    HON. HENRY DENMARK BELL,
MARTY CROUCH,                     )    JUDGE
                                  )
            Appellant.            )    (Sufficiency of the Evidence and
                                       Sentencing)



FOR THE APPELLANT:                     FOR THE APPELLEE:


THOMAS H. MILLER                       JOHN KNOX WALKUP
P.O. Box 681662                        Attorney General & Reporter
Franklin, TN 37068-1662
       (On Appeal)                     TIMOTHY BEHAN
                                       Asst. Attorney General
JAMES E. BROCKMAN                      Cordell Hull Bldg., 2nd Fl.
P.O. Box 25                            425 Fifth Ave., North
Parsons, TN 38363                      Nashville, TN 37243-0493
      (At Trial)
                                       RON DAVIS
                                       District Attorney General

                                       DONALD W. SCHWENDIMANN
                                       Asst. District Attorney General
                                       481 East Main St.
                                       Hohenwald, TN 38462




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              On February 22, 1996, the defendant was found guilty by a jury of one

count of possession of marijuana, one count of possession of drug paraphernalia, and

one count of possession of a handgun by one who has been convicted of a felony drug

offense. The defendant was subsequently sentenced to a term of eleven months, twenty-

nine days with regard to the possession of marijuana and drug paraphernalia and a term

of three years with regard to the possession of a handgun. These sentences were to run

concurrently to each other and were to be served in the Tennessee Department of

Correction. The defendant now appeals and presents the following issues for our review:

              (1) Is the evidence contained in the record sufficient to support a
              finding by a rational trier of fact that the defendant is guilty of
              possession of drug paraphernalia beyond a reasonable doubt; and

              (2) Did the trial court improperly apply enhancing and mitigating
              factors and thereby impose an excessive sentence?

After a review of the record and applicable law, we affirm the judgment of the trial court.



              On September 5, 1995, the Lewis County Sheriff’s Department executed a

search warrant for the defendant’s home. During the search, the police found 1.1 grams

of marijuana, a container in the refrigerator containing a marijuana bud, a coffee can

containing marijuana seeds, hemostats, a “pneumatic type fitting,” and a wooden block

with two holes drilled in it. The defendant returned home while the search was in progress

and a loaded handgun was subsequently found in the backseat of his vehicle.



              According to Deputy Wix, a deputy with the Lewis County Sheriff’s

Department, hemostats are a type of medical clamp commonly used to smoke the last part

of a marijuana “joint.” Deputy Wix also testified that the pneumatic fitting found in the

defendant’s home is a slip-on fitting that is also used to smoke the last part of a marijuana



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joint. The wooden block with holes drilled in it is commonly used for the same purpose.

Deputy Wix further testified that, in his opinion, the wooden block contained marijuana

residue evidenced by the distinct odor of marijuana.



                The defendant first contends that the record contains insufficient evidence

to support a finding by a rational trier of fact that the defendant is guilty of possession with

the intent to use drug paraphernalia beyond a reasonable doubt. A defendant challenging

the sufficiency of the proof has the burden of illustrating to this Court why the evidence is

insufficient to support the verdict returned by the trier of fact in his or her case. This Court

will not disturb a verdict of guilt for lack of sufficient evidence unless the facts contained

in the record and any inferences which may be drawn from the facts are insufficient, as a

matter of law, for a rational trier of fact to find the defendant guilty beyond a reasonable

doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



              When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “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). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and legitimate

inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978).



              Questions concerning the credibility of witnesses , the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved by

the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict rendered

by the jury and approved by the trial judge accredits the testimony of the witnesses for the


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State, and a presumption of guilt replaces the presumption of innocence. State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973).



                  The defendant argues that the evidence failed to establish that the items

seized from his residence were in his possession for the purpose of drug use. The

defendant bases this contention on the fact that Deputy W ix’s testimony was the only

evidence indicating that the wooden block found in his home was used to smoke

marijuana. The defendant challenges Deputy Wix’s qualifications with regard to narcotics

identification.



                  Deputy Wix testified that, in his opinion, the residue found in the wooden

block was marijuana residue. He based this opinion on training he received in two

narcotics investigative schools and a police academy course. Deputy Wix further testified

that he had been involved with other narcotics cases in his career and had had experience

identifying marijuana. In light of the foregoing, Deputy Wix was qualified to testify as to

whether the substance in the wooden block was marijuana. See State v. Anderson, 644

S.W.2d 423, 424 (Tenn. Crim. App. 1982); see also State v. Doelman, 620 S.W.2d 96, 99

(Tenn. Crim. App. 1981); Armstrong v. State, 548 S.W.2d 334, 337 (Tenn. Crim. App.

1976). As it is within the province of the jury to decide the credibility of witnesses and the

weight to be given to their testimony, it was proper for the jury to accredit the testimony of

Officer Wix. This contention is without merit.



                  The defendant next contends that his sentence is excessive. When a

defendant complains of his or her sentence, we must conduct a de novo review with a

presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the

sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing

Commission Comments. This presumption, however, “is conditioned upon the affirmative


                                               4
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).



              The Sentencing Reform Act of 1989, codified at T.C.A. § 40-35-210,

established a number of specific procedures to be followed in sentencing. This section

mandates the court’s consideration of the following:



              (1) The evidence, if any, received at the trial and the sentencing
              hearing; (2) [t]he presentence report; (3) [t]he principles of sent-
              encing and arguments as to sentencing alternatives; (4) [t]he
              nature and characteristics of the criminal conduct involved; (5)
              [e]vidence and information offered by the parties on the enhance-
              ment and mitigating factors in §§ 40-35-113 and 40-35-114; and
              (6) [a]ny statement the defendant wishes to make in his own be-
              half about sentencing.

T.C.A. § 40-35-210.



              In addition, this section provides that the minimum sentence within the range

is the presumptive sentence. If there are enhancing and mitigating factors, the court must

start at the minimum sentence in the range and enhance the sentence as appropriate for

the enhancement factors and then reduce the sentence within the range as appropriate

for the mitigating factors. If there are no mitigating factors, the court may set the sentence

above the minimum in that range but still within the range. The weight to be given to each

factor is left to the discretion of the trial judge. State v. Shelton, 854 S.W.2d 116, 123

(Tenn. Crim. App. 1992).



              The Act further provides that “[w]henever the court imposes a sentence, it

shall place on the record either orally or in writing, what enhancement or mitigating factors

it found, if any, as well as findings of fact as required by § 40-35-209.” T.C.A. § 40-35-

210(f) (emphasis added). Because of the importance of enhancing and mitigating factors

under the sentencing guidelines, even the absence of these factors must be recorded if

                                              5
none are found. T.C.A. § 40-35-210 comment. These findings by the trial judge must be

recorded in order to allow an adequate review on appeal.



              As the trial court here failed to place on the record findings of fact with regard

to the applicable enhancement and mitigating factors, the trial court’s determinations are

not entitled to a presumption of correctness. T.C.A. § 40-35-210(f). As such, our review

of the sentence is simply de novo.



              The trial court applied enhancement factor (1), that the defendant has a

previous history of criminal convictions or criminal behavior in addition to those necessary

to establish the appropriate range, and enhancement factor (8), that the defendant has a

previous history of unwillingness to comply with the conditions of a sentence involving

release in the community. T.C.A. § 40-35-114(1), (8). The trial court found no applicable

mitigating factors.



              The defendant contends that the trial court should not have used

enhancement factor (8) to enhance his sentences. Specifically, the defendant argues that

the State failed to introduce any evidence that the defendant has a previous history of

unwillingness to comply with the conditions of a sentence involving release in the

community. However, the presentence report was made an exhibit at the sentencing

hearing. The report indicates that the defendant has been convicted of several crimes

while serving probation. The defendant did not contest this fact at the sentencing hearing.

As such, this factor was properly used to enhance the defendant’s sentences.



              The defendant also contends that the trial court erred when it failed to apply

mitigating factor (1), that the defendant’s conduct neither caused nor threatened serious

bodily injury. T.C.A. § 40-35-113(1). However, the defendant was convicted of possession


                                              6
of a handgun by one who has been convicted of a felony drug offense. The gun was in

the middle of the backseat of his car, easily within reaching distance when he arrived home

to find the police searching his residence. In addition, the gun was loaded. These facts

do not support the application of this mitigating factor. As such, this contention is without

merit.



              In light of the foregoing applicable enhancement factors and lack of

applicable mitigating factors, we find the trial court’s sentence of eleven months and

twenty-nine days with regard to possession of marijuana and drug paraphernalia and the

term of three years with regard to possession of a handgun by one convicted of a felony

drug offense is entirely proper.



              In sum, we find that the evidence is sufficient to support the defendant’s

conviction for possession of drug paraphernalia and that the trial court did not commit error

in sentencing the defendant. Accordingly, the judgment of the trial court affirmed.




                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
JERRY L. SMITH, Judge




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