         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    March 26, 2008 Session

        STATE OF TENNESSEE v. CHARLES LINCOLN FAULKNER

                   Direct Appeal from the Circuit Court for Sullivan County
                            No. S46,737    Phyllis H. Miller, Judge



                       No. E2006-02094-CCA-R3-CD - Filed June 2, 2008



The Defendant, Charles Lincoln Faulkner, was convicted of selling more than 0.5 grams of cocaine
within 1000' of school property and delivery of more than 0.5 grams of cocaine within 1000' of
school property. The trial court merged the convictions and sentenced the Defendant to twenty years
in prison and a fine. On appeal, the Defendant alleges the trial court erred by: (1) failing to dismiss
the charges because of a material variance between the presentment and evidence at trial; (2) failing
to exclude evidence of prior bad acts; (3) failing to exclude expert testimony; (4) instructing the jury
in error; (5) failing to bifurcate the trial; and (6) sentencing the Defendant in violation of the Sixth
Amendment. After a thorough review of the record and applicable law, we affirm the judgment of
the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN , JJ., joined.

Leslie S. Hale, Blountville, Tennessee, for the Appellant, Charles Lincoln Faulkner.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John
H. Bledsoe, Assistant Attorney General; H. Greeley Wells, Jr., District Attorney General; Kent
Chitwood, Jr., Assistant District Attorney General, for the Appellee, the State of Tennessee.

                                              OPINION

                                               I. Facts

        The Sullivan County Grand Jury originally issued a presentment charging that the Defendant
did “sell or deliver point five (.5) grams or more of a substance containing Cocaine, a Schedule II
Controlled Substance, within 1000' of John Sevier Middle School, contrary to T.C.A. § 39-17-417,
a Class A felony . . . .” The State moved to amend the presentment, which the trial court allowed.
The amended presentment alleged one count of sale of a controlled substance and one count of
delivery of a controlled substance, both in violation of Tennessee Code Annotated sections 39-17-
417 and 39-17-432; the amended presentment otherwise conformed with the original presentment
that it replaced.

        The State presented the following evidence at the Defendant’s trial: Deputy Richard McCann,
of the Sullivan County Sheriff’s Office, testified that he and Angela Sullivan planned an undercover
“buy” on January 31, 2001. She was a confidential informant, and, as soon as Deputy McCann met
her, he searched her. He then placed a “body wire” on her and searched her car ensuring she
possessed no contraband. On cross-examination, Deputy McCann stated that he would not search
another police officer making a “buy,” but it was policy to search informants. He stated that trust
was not a factor in his decision to search Sullivan.

        Angela Sullivan testified that she knew the Defendant through his wife, with whom she
attended high school. Prior to the “buy,” she had known the Defendant for four to six months.
During that time, she “met with him” seven or eight times, always at the Minute Market on Center
Street in Kingsport. Originally, it was the Defendant’s idea to meet at the Minute Market; then, the
Minute Market became their regular meeting place.

       Sullivan further testified that she first approached the law enforcement of Sullivan County
about working together because she had been charged with attempt to obtain narcotics by fraud and
criminal solicitation. Sullivan stated that, although no promises were made to her, she felt as though
she could “help her case” by becoming a confidential informant. She faced two to six years for her
conviction, and she received two years of probation. She once violated her probation by failing a
drug test, for which she spent seventy-six days in jail. Sullivan also admitted that she previously
pled guilty to selling ecstacy fourteen years ago in South Carolina.

         Sullivan stated that, on the day in question, she met the officers at a preassigned location.
She and her car were both searched, and she then made a phone call to the Defendant’s pager. The
Defendant called Sullivan back, and Sullivan told the Defendant that she wanted to purchase
cocaine. The Defendant stated that he would need to call her back, which he did. He told Sullivan
that the deal was a “go,” and they should meet him at “the place” they had previously met. Sullivan
and Agent Kinser, the agent who accompanied her on the purchase, then proceeded to the Minute
Market. When they arrived at the Minute Market,1 the Defendant was standing by a pay phone with
a group of individuals. He approached the vehicle and got in on the rear passenger side. Once
inside, they exchanged greetings, and the Defendant “pulled out a baggie with rock cocaine in it” and
passed it to Agent Kinser. Officer Kinser handed the Defendant five hundred dollars, and they said
good-bye.2


            1
         Sullivan identified on a large map precisely where she parked the car at the Minute Market and from where
the Defendant approached.

            2
                Sullivan stated that she was wired throughout the transaction, and a tape of the transaction was played for
the jury.

                                                                2
      On cross-examination, Sullivan testified that she received payments for being a confidential
informant on prior occasions but not in this instance. Sullivan stated that, after the purchase, the
Defendant walked back to where she initially saw him standing when they drove up.

        Agent Shannon Kinser, with the Tennessee Bureau of Investigation (“TBI”), testified that he
and Sullivan worked together once prior to this occasion. On this occasion, Sullivan arrived at the
designated location, the police searched her, and she called the Defendant. The police placed a wire
on Sullivan, and Agent Kinser proceeded with Sullivan to the Minute Market where the deal was to
take place. When they approached, the Defendant was standing with three to four other gentlemen.
They parked at the Minute Market,3 and the Defendant approached and entered their vehicle. After
the transaction, Sullivan and Kinser drove away from the Minute Market the same way as they had
come.

        In specifically describing the transaction, Agent Kinser stated that the Defendant entered the
car, and Sullivan introduced the Defendant as “Sean.” The Defendant handed Agent Kinser a bag
of what appeared to be rock cocaine, and Agent Kinser asked the Defendant if it was worth $500.
The Defendant responded that it was, and Agent Kinser asked him if he weighed it. The Defendant
responded that he had not, but his “boy” had. Agent Kinser paid the Defendant $500, and the
Defendant exited the vehicle.4

        On cross-examination, Agent Kinser stated that he did not take pictures of the drugs before
they were sent to the TBI. He stated that he could not specifically remember what the Defendant did
after exiting the car, but Kinser recalled seeing the group of men with whom the Defendant was
standing get in a car and leave. He asked his surveillance team to obtain the tag number on that car.
Agent Kinser stated that he felt as though the amount of drugs he received for his $500 was “a little
light, but it’s not uncommon for the first purchase that a new person makes.” He stated that, as a
general rule when staging a drug buy, he tries to buy as much as possible. On redirect-examination,
Agent Kinser testified that, when he arrived at the Minute Market, he was unaware of the location
of John Sevier Middle School.

       Jake White, the Geographic Information Systems manager for the City of Kingsport, testified
that he prepared and updated maps for the city. He testified that he prepared a map for the
Defendant’s trial that showed John Sevier Middle School and the property around it. Around John
Sevier Middle School, White included a 1000' zone, highlighted in a different color. The map
showed 1108 Center Street, the Minute Market, within the 1000' zone around John Sevier Middle
School. White additionally stated that he performed a visual inspection of the area to verify the map.

       On cross-examination, White testified that the map included a red border around the John
Sevier Middle School’s property. The border did not delinate the boundaries of the school buildings,


       3
           Agent Kinser identified on a large map precisely where Sullivan parked the car.

       4
           The tape recording of the transaction was again played for the jury. Agent Kinser narrated the recording.

                                                          3
but the real property of the school. White measured the map with a ruler and determined that the
points marked on the map by the witnesses were between 800' and 900' from the real property of the
school.

        Amy Gatley, the Community Relations Coordinator for the Kingsport City Schools, testified
that she is familiar with John Sevier Middle School, and, after examining the large map, she
identified it on the map. She stated that the area within the red border is the real property of John
Sevier Middle School.

        Celese White, a drug chemist for the TBI, testified that the substance bought from the
Defendant tested positive for cocaine. More specifically, the rock-like substance weighed 3.3 grams
and was cocaine base. On cross-examination, White stated that the machine takes less than ten
seconds to perform the first test, and then a graph is printed with the results. White stated that the
last person to use the lab equipment is always responsible for cleaning it, and she admitted that she
did not clean the equipment before using it.

        Officer Glenn Cradic, with the Second Judicial District Drug Task Force, testified that he met
with Sullivan, Agent Kinser, and Agent McCann prior to the drug purchase to discuss the deal.
Officer Cradic stated that his role was as surveillance, and, in that role, he followed Sullivan and
Agent Kinser to the Minute Market when they purchased the drugs. Officer Cradic stated that he
pulled over two blocks before the Minute Market and listened to the transaction through a
transmitter. After the transaction, Officer Cradic heard Agent Kinser state that they were leaving the
scene, and Officer Cradic pulled in behind Sullivan and Agent Kinser and followed them back to a
predetermined location.5

        On cross-examination, Officer Cradic stated that maps showing school zones like the one
used at trial have been available for approximately three years. Officer Cradic testified, though, that
he would not intentionally set up a drug deal within a “school zone.” Officer Cradic also stated that
he photocopied the money used to pay the Defendant. This is generally done so the serial numbers
can be identified if the money is later discovered. This money was never discovered.

        Agent Brian Bishop, the Director of the Second Judicial District Drug Task Force, testified
that he ultimately decides whether to purchase drugs from dealers. Agent Bishop testified that he
did not select or direct where this drug purchase took place, and he did not know the distance
between the Minute Market and John Sevier Middle School. He stated that, prior to the purchase,
he drove by the area where the purchase was to be made, and he saw the Defendant standing in
approximately the same place as where he was when Agent Kinser and Sullivan arrived for the
purchase. Agent Bishop testified that, after the purchase, he measured the distance between the John
Sevier Middle School grounds and an area past the Minute Market lot where the transaction took
place. He identified the distance as 890' 9".



       5
           As it is not in issue, testimony about the chain of custody has been omitted.

                                                            4
       Based on this evidence, the jury convicted the Defendant of the sale of more than 0.5 grams
of cocaine within 1000' of a school, and delivery of more than 0.5 grams of cocaine within 1000' of
a school. The trial court merged the convictions.

        At the sentencing hearing, Agent Bishop testified that the Defendant had a history of prior
cocaine sales in the community, and he was uncooperative in the sense that he did not aid in
subsequent investigations. The State additionally submitted a burglary conviction from Alabama,
and two misdemeanor convictions for passing worthless checks. The court determined the
convictions were not enough to enhance the Defendant’s sentence. The trial court found also no
mitigation factors applied and, thus, sentenced the Defendant to the presumptive twenty year
sentence.

                                              II. Analysis

        On appeal, the Defendant has asserted eleven separate allegations of error. We have
condensed these issues as follows: (1) the trial court erred by failing to dismiss the charges because
of a material variance between the presentment and evidence at trial; (2) the trial court erred by
failing to exclude evidence of prior bad acts; (3) the trial court erred by failing to exclude expert
testimony; (4) the trial court erred by instructing the jury in error; (5) the trial court erred by failing
to bifurcate the trial; and (6) the trial court erred by sentencing the Defendant in violation of the
Sixth Amendment.

                             A. Presentment, Variance, and Evidence

        The Defendant’s chief complaint is that the presentment does not specify whether the 1000'
border was measured from the school buildings or the real property of the school. The trial court
determined that the language of the presentment was sufficient to allege 1000' from the real property
of the school and thus prevented the Defendant from introducing evidence that the location of the
sale was more than 1000' from the school buildings. We will first address the sufficiency of the
presentment and then the issues flowing therefrom.

                                  1. Sufficiency of the Presentment

        Initially, the Defendant argues that the presentments did not charge the Defendant with
selling cocaine within 1000' of the real property of a public middle school. The question of the
validity of an indictment is one of law and, as such, our review is de novo. State v. Hill, 954 S.W.2d
725, 727 (Tenn. 1997). Pursuant to the provisions of both the Tennessee and United States
Constitutions criminal defendants have a right to know “the nature and cause of the accusation.”
U.S. Const. amend. VI; Tenn. Const. art. I, § 9. “As Tennessee courts have held, in order to satisfy
the constitutional requirement, an indictment or presentment must provide a defendant with notice
of the offense charged, provide the court with an adequate ground upon which a proper judgment
may be entered, and provide the defendant with protection against double jeopardy.” State v. Byrd,
820 S.W.2d 739, 741 (Tenn. 1991). A “valid indictment is an essential jurisdictional element,
without which there can be no prosecution.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998);

                                                    5
Hill, 954 S.W.2d at 727. Tennessee Code Annotated section 40-13-202 states:

       The indictment must state the facts constituting the offense in ordinary and concise
       language, without prolixity or repetition, in such a manner as to enable a person of
       common understanding to know what is intended, and with that degree of certainty
       which will enable the court, on conviction, to pronounce the proper judgment . . . .

       The presentment with two counts charging the Defendant with selling and delivering cocaine
withing 1000' of John Sevier Middle School both follow the same pattern. Count One states:

       The Grand Jurors for Sullivan County, Tennessee, duly empaneled and sworn, upon
       their oath, present and say that CHARLES FAULKNER on or about January 31,
       2001, in the State and County aforesaid and before the finding of this Presentment
       did unlawfully, feloniously, and knowingly sell point five (.5) gram or more of a
       substance containing Cocaine, a Schedule II controlled substance as classified by the
       Tennessee Drug Control Act within 1000 feet of John Sevier Middle School, contrary
       to Tennessee Code annotated, Sections 39-17-417 and 39-17-432, a Class A felony,
       and
               Against the peace and dignity of the State of Tennessee.

Generally, section -417 proscribes the selling or delivering of a controlled substance, of which
cocaine is one. Under this section, selling or delivering cocaine is a Class B felony. T.C.A. § 39-17-
417(c)(1) (1997). Section -432, titled “Drug-Free School Zone – Enhanced criminal penalties for
violations within zone” created a 1000' buffer zone around schools. That section specifically states,

       A violation of § 39-17-417 . . . that occurs on the grounds or facilities of any school
       or within one thousand feet (1,000') of the real property that comprises a public or
       private elementary school, middle school or secondary school shall be punished one
       (1) classification higher than is provided in § 39-17-417(b)-(i) for such violation.

T.C.A. § 39-17-432(b) (1997).

        We conclude that the presentments charging the Defendant with selling drugs within 1000'
of a school is sufficient to provide “notice of the offense charged, provide the court with an adequate
ground upon which a proper judgment may be entered, and provide the defendant with protection
against double jeopardy.” Byrd, 820 S.W.2d at 741. The Defendant argues that the failure to include
in the presentments that the 1000' parameter begins at the real property, rather than the buildings of
the school, renders the presentments insufficient. We disagree. The presentments are legally
sufficient to allege that the Defendant sold or delivered drugs within 1000' of the real property of a
school, especially considering the presentment referenced the statute in issue. This specificity is
sufficient to satisfy legal requirements.

                                       2. Material Variance


                                                  6
        The Defendant next argues that, because the presentments were insufficient to allege he sold
drugs within 1000' of the real property of a school, the proof at trial was a material variance to the
presentments, and the State presented insufficient evidence to convict. Because we concluded the
presentments were legally sufficient, we do not need to address the Defendant’s material variance
argument as the proof at trial coincided with the allegations in the presentments. See State v.
Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000) (“A material variance occurs only if the
prosecutor has attempted to rely on theories and evidence at the trial that were not fairly embraced
in the allegations made in the charging instrument.”) (citing State v. Easly, 959 S.W.2d 605, 609
(Tenn. Crim. App. 1997)).

                                   3. Sufficiency of the Evidence

        When an accused challenges the sufficiency of the evidence, this Court’s standard of review
is whether, after considering the evidence in the light most favorable to the State, “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) (emphasis in original); see Tenn. R. App. P. 13(e); State v.
Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.
2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389,
392-93 (Tenn. Crim. App. 1999).

         In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). “Questions
concerning the credibility of witnesses, the weight and value to be given the evidence, as well as all
factual issues raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the theory of the State.” State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the jury see
       the witnesses face to face, hear their testimony and observe their demeanor on the
       stand. Thus the trial judge and jury are the primary instrumentality of justice to
       determine the weight and credibility to be given to the testimony of witnesses. In the
       trial forum alone is there human atmosphere and the totality of the evidence cannot
       be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523 (Tenn.
1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence
contained in the record, as well as all reasonable inferences which may be drawn from the evidence.


                                                   7
Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a
verdict of guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        The Defendant’s convictions and sentence were based on two statutes: one makes the sale
or delivery of more than 0.5 grams of cocaine a felony; and the other enhances the penalty if that sale
or delivery occurs within 1000' of a school. T.C.A. §§ 39-17-417, -432. “Deliver” is defined by
statute as “the actual, constructive, or attempted transfer from one person to another of a controlled
substance, whether or not there is an agency relationship.” T.C.A. § 39-17-401(6) (1997). “Sale”
is defined by case law as “a bargained for, offer and acceptance and an actual or constructive transfer
or delivery of the substance.” State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App. 2002). The
evidence presented at trial showed the Defendant entered into a car with a confidential informant and
a police officer. Two witnesses testified that, in exchange for $500, the Defendant gave the officer
what appeared to be crack cocaine. Laboratory tests confirmed the substance was 3.3 grams of crack
cocaine. Two witnesses further testified that the location of the sale and delivery was within 1000'
of the real property of John Sevier Middle School. The evidence presented is sufficient to sustain
the Defendant’s convictions.

                                     B. Evidence of Prior Acts

         The Defendant alleges that the trial court erred in failing to grant a mistrial after Sullivan
testified she had met the Defendant at the Minute Market seven or eight times prior to this meeting.
Specifically, the testimony in issue is as follows:

       Q: Okay, and prior to January 31, 2001, how long did you know the Defendant?
       A: Approximately four to six months.
       Q. Okay, and in that four to six month period how many times would you say you
       met with the Defendant?
       A: Seven or eight times.
       Q: Okay, and when you and the Defendant would get together or meet, would you
       meet at a certain place?
       A: Yes.
       Q: Okay, and where is that?
       A: The Minute Market on Center Street.
       Q: In Kingsport?
       A: Yes.

The Defendant objected in a bench conference outside the earshot of the jury. After hearing
arguments from the Defendant and the State, the trial court determined the evidence was relevant
to whether the State lured the Defendant to within 1000' of the school and allowed the testimony.
The questioning continued with Sullivan never explaining why she met with the Defendant.
Ultimately, when asked whose idea it was to meet at the Minute Market, Sullivan stated, “His
suggestion to begin with, and then since it was, we had met there several times, I might call him or

                                                  8
page him, he would call me and I would say ‘do you want to meet at the same place,’ so –.”

          The Defendant again objected noting that the pager referenced in the statement was likely
the same one used in the purchase in this case. The trial court held a jury out hearing, at which the
Defendant argued that he had not raised the defense of entrapment, or made an issue of identity or
mistake, and therefore the testimony was not relevant. The State responded that the line of
questioning “was to show that they had met there before, [and] it was the defendant’s idea to meet
there . . . .” This would show the State was not trying to entrap the Defendant. The trial court found
that “it’s relevant for [the State] to establish that they met there.” The trial court additionally noted
that, although Sullivan did not specifically state she met the Defendant to purchase drugs, the jurors
“are not idiots, you don’t just drop out of the sky, you know, there was a relationship.”

        The decision of whether to grant a mistrial is within the sound discretion of the trial court.
State v. McKinney, 929 S.W.2d 404, 405 (Tenn. Crim. App. 1996). Normally, a mistrial should be
declared only if there is a manifest necessity for such action. Arnold v. State, 563 S.W.2d 792, 794
(Tenn. Crim. App. 1977). One description of manifest necessity is that, “[i]f it appears that some
matter has occurred which would prevent an impartial verdict from being reached,” a mistrial must
be declared. Id. Additionally, a manifest necessity exists when “no feasible alternative to halting
the proceedings” exists. State v. Knight, 616 S.W.2d 593, 596 (Tenn. Crim. App. 1981). The
defendant bears the burden of establishing a manifest necessity. State v. Seay, 945 S.W.2d 755, 764
(Tenn. Crim. App. 1996). This Court will not disturb that decision unless there is an abuse of
discretion. State v. Adkins, 786 S.W.2d 642, 644 (Tenn. 1990); State v. Williams, 929 S.W.2d 385,
388 (Tenn. Crim. App. 1996).

        The Defendant asserts that the need for a mistrial arose because this testimony is proof of
prior bad acts – that Sullivan met with the Defendant on previous occasions to purchase drugs. The
Defendant alleges this evidence was used to show he was a drug dealer, and he conformed to that
character trait on this occasion, violating Tennessee Rule of Evidence 404(b). Rule 404(b) provides:

        Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not
        admissible to prove the character of a person in order to show action in conformity
        with the character trait. It may, however, be admissible for other purposes. The
        conditions which must be satisfied before allowing such evidence are:

        (1) The court upon request must hold a hearing outside the jury’s presence;

        (2) The court must determine that a material issue exists other than conduct
        conforming with a character trait and must upon request state on the record the
        material issue, the ruling, and the reasons for admitting the evidence;

        (3) The court must find proof of the other crime, wrong, or act to be clear and
        convincing; and

        (4) The court must exclude the evidence if its probative value is outweighed by the
        danger of unfair prejudice.

                                                   9
        The evidence, that Sullivan met the Defendant on seven or eight prior occasions at the
Minute Market would, upon first glance, appear to be an “act.” However, the Tennessee Supreme
Court has limited the “act” in 404(b) to “wrongful acts” as stated in State v. Reid, 213 S.W.2d 792,
813 (Tenn. 2006). In Reid, the defendant complained that evidence he possessed a handgun and
knife after the crime was inadmissible under Rule 404(b). Id. The Court concluded that, “because
the possession of a weapon is not necessarily a crime or wrongful act” the evidence was not
prohibited by Tennessee Rule of Evidence 404(b). Id. (emphasis added). First, this statement of the
law appears to limit Rule 404(b) to bad acts. Moreover, if the act is not necessarily bad, no 404(b)
issue exists. Thus, we might characterize the rule as only applying to explicitly bad acts. Here, the
evidence was only implicitly bad through the jury’s consideration of the circumstances: the
Defendant, on trial for dealing drugs at a particular location, has met a drug purchaser at that location
on several prior occasions. If this is the law as contemplated by the Tennessee Supreme Court, the
evidence in issue is not objectionable under Rule 404(b). Thus, the trial court was not in error to
allow the evidence.6

         If, however, Rule 404(b) covers seemingly benign acts, such as meeting someone at a
convenience store, implicitly bad in light of the circumstances, our analysis must continue. Pursuant
to the requirements of Rule 404(b), the trial court considered the State’s argument that the evidence
was introduced to show the State did not entrap the Defendant. This appears to fall squarely within
the prohibited portion of the rule: the Defendant has a character trait of frequenting the Minute
Market, and he acted in conformity therewith on this occasion. Despite this, the evidence would be
admissible if an element of the crime was that the Defendant had a tendency to frequent the location;
this was the State’s argument. We agree, however, with the Defendant that his tendencies are not
an element of the crimes charged. The State was only required to prove the Defendant sold cocaine
at this location on this occasion.

         The tendencies might, instead, be relevant to a defense of entrapment. At the point the
evidence was presented, however, no defense of entrapment had been raised. As further discussed
in the section on jury instructions, a trial court is required to instruct on entrapment if the proof
“fairly raises” the issue. See State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998). Thus, the
question of whether the defense was “fairly raised” at the time of the testimony is important. In our
view, the defense would not be “fairly raised” unless, prior to the testimony in issue, someone
testified that the Defendant was not “predisposed” to sell drugs within the 1000' school zone. See
T.C.A. § 39-11-505 (1997) (“It is a defense to prosecution that law enforcement officials, acting


         6
          Although not specifically argued, the evidence would still need to pass basic relevancy requirements. See
Tenn. R. Evid. 401, 402. As noted below, the evidence was not relevant to entrapment at the time the State
introduced it. The evidence does, however, have some relevancy to show the basis for the witness’s identification of
the defendant and as background information. Further, it is not subject to the stringent test in Gilliland as it is not
evidence of a prior bad act. The trial court would then need to conclude that the probative value of the evidence is
not substantially outweighed by the danger of unfair prejudice – the jury inferring that the Defendant was previously
a drug dealer and was thus one on this occasion. See Tenn. R. Evid. 403. W e conclude that a decision finding the
probative value is not substantially outweighed by the danger of unfair prejudice is supported by the evidence and
not an abuse of discretion.

                                                          10
either directly or through an agent, induced or persuaded an otherwise unwilling person to commit
an unlawful act when the person was not predisposed to do so.”).7

        Sullivan testified early in the trial. Prior to her testimony, Deputy McCann testified on direct
examination about searching Sullivan before the purchase. On cross-examination, Deputy McCann
offered no evidence on the Defendant’s tendencies in issue. After Deputy McCann testified, Sullivan
took the stand and described how she came to know the Defendant. She then immediately stated,
in response to a question, that she had met the Defendant “seven or eight times” at the Minute
Market. At this point, we agree with the Defendant that the issue of whether the Defendant was
predisposed to sell drugs at the Minute Market, or otherwise within the 1000' border, was not in
issue. If someone, either through cross-examination or direct testimony, testified that the Defendant
was lured into the 1000' zone, the testimony would then have relevance. Until then, the testimony
should not have been admitted for this purpose, and it was error to do so.

       We further conclude the information is not necessary under State v. Gilliland to provide
background. See 22 S.W.3d 266, 271 (Tenn. 2000). Under this narrow exception, three
requirements are needed:

        (1) the absence of the evidence would create a chronological or conceptual void in
        the state’s presentation of its case; (2) the void created by the absence of the evidence
        would likely result in significant jury confusion as to the material issues or evidence
        in the case; and (3) the probative value of the evidence is not outweighed by the
        danger of unfair prejudice.

Id. at 272. The lack of testimony that the Defendant met Sullivan at the Minute Market on seven or
eight prior occasions does not create a chronological or conceptual void in the State’s case. The
issue in this case is whether or not the Defendant sold cocaine within a 1000' school zone. Although
the jury may be left wondering how the informant came to know the Defendant, the answer is
irrelevant to the central question. This exception to the exclusionary rule does not apply.

        Finally, we also conclude that the evidence could not be used at this time to help prove
identity. The identity of the Defendant was not a material issue and was not contested. Under State
v. McCary, 404(b) evidence should not be used to show identity unless it is a “material issue.” 922
S.W.2d 511, 513 (Tenn. 1996); see Tenn. R. Evid. 404(b)(2) (“The court must determine that a
material issue exists other than conduct conforming with a character trait . . . .”). Thus, if Rule
404(b) covers implicitly bad acts, the trial court was in error to allow the evidence, because there was
no “other purpose” for which it was relevant at the time it was admitted.

       We cannot, however, conclude that the testimony required a mistrial. Again, the burden is
a “manifest necessity.” A manifest necessity exists when there is “no feasible alternative to halting


        7
          As the evidence at trial did not show this, we express no opinion about whether such evidence would
actually constitute a defense to the Drug Free School Zones Act.

                                                        11
the proceedings.” Knight, 616 S.W.2d at 596. When determining whether a mistrial is necessary
after a witness had injected improper testimony, this Court has often considered the following
factors: (1) whether the improper testimony resulted from questioning by the state or was it a
gratuitous declaration, (2) the relative strength or weakness of the state’s case, and (3) whether the
trial court promptly gave a curative instruction. See State v. Lawrence Taylor, No.
W2002-00183-CCA-R3-CD, 2003 WL 402276, at *4 (Tenn. Crim. App., at Jackson, Feb. 14, 2003),
no Tenn. R. App. P. 11 application filed. As the trial court noted, the jury would likely infer that she
previously purchased drugs from the Defendant. This testimony was solicited by the State, and the
trial court did not give a curative instruction. The impact of such testimony, however, is limited
because of the overwhelming nature of the evidence. In our view, despite the fact that this limited
line of questioning should not have been admitted at this stage of the proceedings, we do not agree
that there was a manifest necessity for a mistrial. The Defendant is not entitled to relief on this issue.

                                        C. Expert Testimony

        The Defendant next argues that the trial court erred in allowing two experts to testify. As
stated by McDaniel v. CSX Transportation, Inc., “In general, questions regarding the admissibility,
qualifications, relevancy and competency of expert testimony are left to the discretion of the trial
court.” 955 S.W.2d 257, 263 (Tenn. 1997) (citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn.
1993); accord Brown v. Crown Equip. Corp., 181 S.W.3d 268, 273-74 (Tenn. 2005). “The trial
court’s ruling in this regard may only be overturned if the discretion is arbitrarily exercised or
abused.” Id. Specifically, the rules that govern the admissibility of such evidence are Tennessee
Rules of Evidence 702 and 703. Rule 702 provides:

        If scientific, technical, or other specialized knowledge will substantially assist the
        trier of fact to understand the evidence or to determine a fact in issue, a witness
        qualified as an expert by knowledge, skill, experience, training, or education may
        testify in the form of an opinion or otherwise.


Rule 703 provides:

        The facts or data in the particular case upon which an expert bases an opinion or
        inference may be those perceived by or made known to the expert at or before the
        hearing. If of a type reasonably relied upon by experts in the particular field in
        forming opinions or inferences upon the subject, the facts or data need not be
        admissible in evidence. The court shall disallow testimony in the form of an opinion
        or inference if the underlying facts or data indicate lack of trustworthiness.

In addition to complying with Rules 702 and 703, the evidence must be relevant under Rule 401.
McDaniel, 955 S.W.2d at 264 n8. Therefore, the trial court must “determine that the expert
testimony is reliable in that the evidence will substantially assist the trier of fact to determine a fact
in issue and that the underlying facts and data appear to be trustworthy.” Brown, 181 S.W.3d at 274.


                                                   12
                                            1. James White

        James White, the manager for the Geographic Information System for the City of Kingsport,
testified that he prepared a map of the area in issue and, with the aid of a software program, he
highlighted a 1000' buffer zone around John Sevier Middle School. Included in that 1000' zone was
the location of the sale. Upon questioning by the Defendant, White stated that the underlying data
used to make the map was parcel information, aerial photographic information, and ownership
information. The parcel information was taken from the Sullivan County Tax Assessor’s Office,
based on deeds and surveys at the Deed of Recorder’s Office. White admitted he did not personally
check the basis for the deeds and surveys; that was the responsibility of the tax assessor.

        White further stated that a third party checked the accuracy of the aerial photography using
photogemetric methods. To his knowledge, the State quality controlled the maps, but White was
unsure if they were subject to peer review. White calculated the margin of error to be eight feet.
Thus, something pictured on the map was always within eight feet of its actual location on the face
of the earth. These maps are accepted within the scientific community. White admitted that he had
not physically measured the distance as pictured on the map. Based on his questioning, the
Defendant objected to White being tendered as an expert. The trial court overruled the objection.


        We conclude that the evidence is relevant to the distance of the drug sale from John Sevier
Middle School. White’s specialized knowledge and his map clearly would assist the jury in
determining this factual question. The Defendant focuses his objection on White’s lack of
trustworthiness under Rule 703. We cannot conclude that the trial court abused its discretion in
finding White was trustworthy, and his basis of information was trustworthy. The Defendant has
presented no basis to conclude that the underlying photographs, ownership, and parcel information
is anything but reliable.

                                            2. Celeste White

        The State called Celeste White, the TBI chemist, to testify that the substance purchased from
the Defendant was 3.3 grams of crack cocaine. The record shows she was questioned about her
credentials by the State, and the State asked she be tendered as an expert. The Defendant questioned
White about her tests, then stated, “Okay, I don’t have anything further, thank you, at this time.” The
trial court then stated, “All right, I find that Ms. White is qualified to testify as an expert in the field
of drug chemistry and analysis.” Because the Defendant did not object to the witness being tendered
as an expert, he has waived this issue on appeal. See Tenn. R. App. P. 36(a). He is not entitled to
relief on this issue.

                                          D. Jury Instructions

       The Defendant makes five arguments with respect to the jury instructions: (1) the instructions
were insufficiently specific; (2) the instructions had the effect of creating a duplicitous charge; (3)


                                                    13
the trial court erred in instructing on lesser included offenses; (4) the trial court erred in failing to
instruct on entrapment; and (5) the trial court failed to require the State to elect whether the distance
would be measured from a school building or the real property.

        A trial court has the duty, in criminal cases, to fully instruct the jury on the general principles
of law relevant to the issues raised by the evidence. See State v. Burns, 6 S.W.3d 453, 464 (Tenn.
1999); State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); State v. Elder, 982 S.W.2d 871, 876
(Tenn. Crim. App. 1998). Nothing short of a “‘clear and distinct exposition of the law’” satisfies
a defendant’s constitutional right to trial by jury. State v. Phipps, 883 S.W.2d 138, 150 (Tenn. Crim.
App. 1994) (quoting State v. McAfee, 737 S.W.2d 304 (Tenn. Crim. App. 1987) (quoting Strady v.
State, 45 Tenn. 300, 307 (1868))). In other words, the court must instruct the jury on those principles
closely and openly connected with the facts before the court, which are necessary for the jury’s
understanding of the case. Elder, 982 S.W.2d at 876. Because questions of the propriety of jury
instructions are mixed questions of law and fact, our standard of review here is de novo, with no
presumption of correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38
S.W.3d 521, 524 (Tenn. 2001).

         “A defendant has a constitutional right to a correct and complete charge of the law.” State
v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990), superceded by statute on other grounds as stated in State
v. Reid, 91 S.W.3d 247 (Tenn. 2002). When reviewing jury instructions on appeal to determine
whether they are erroneous, this Court must “review the charge in its entirety and read it as a whole.”
State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v. Stephenson, 878 S.W.2d 530,
555 (Tenn. 1994)). The Tennessee Supreme Court, relying on the words of the United States
Supreme Court, has noted that:

        [J]urors do not sit in solitary isolation booths parsing instructions for subtle shades
        of meaning in the same way that lawyers might. Differences among them in
        interpretation of instructions may be thrashed out in the deliberative process, with
        commonsense understanding of the instructions in the light of all that has taken place
        at the trial likely to prevail over technical hairsplitting.

Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)). A jury instruction is considered
“prejudicially erroneous,” only “if it fails to fairly submit the legal issues or if it misleads the jury
as to the applicable law.” Id. Even if a trial court errs when instructing the jury, such instructional
error may be found harmless. State v. Williams, 977 S.W.2d 101, 104 (Tenn. 1998). With this in
mind, we turn to the Defendant’s claims with regard to his jury instructions.

                                      1. Insufficient Specificity

        First, the Defendant argues that the jury instructions were insufficiently specific because the
trial court only specifically instructed the jury that the sale or delivery had to occur “within 1000' of
real property that comprises a public middle school” one time each – i.e., once for sale and once for
delivery. The Defendant notes, “Other than the two instructions, every other instruction refers to the


                                                    14
crime occurring within ‘1000 feet of school property,’ and does not reference that the school must
be a middle school.” The statute makes it a crime to sell or deliver more than 0.5 grams of cocaine
within 1000' of a school’s real property. T.C.A. § 39-17-432. Upon our review of the jury
instructions, we fail to see how the instructions, in any way, do not “fairly submit the legal issues
or . . . mislead[] the jury as to the applicable law.” Hodges, 944 S.W.2d at 352. The instructions on
this issue are sufficient.

        The Defendant additionally argues that the jury made no factual finding that the school was
a public middle school, and he cites State v. Fields, 40 S.W.3d 435, 439-40 (Tenn. 2001), for
support. In Fields, the jury convicted the defendant of facilitation of the sale of cocaine. Id. at 439.
The Tennessee Supreme Court determined that she should not be denied alternative sentencing on
the basis that the sale occurred within 1000' of a school because she was neither indicted nor
convicted under the Drug Free School Zones Act. Id. at 440. This case is inapplicable to the
Defendant’s case because the Defendant was convicted under the Drug Free School Zones Act. We
find no support for the Defendant’s assertion that the jury must specifically state whether the school
was public or private, or elementary, middle or secondary, especially because the statute allows a
conviction for any of these. T.C.A. § 39-17-432 (“public or private elementary school, middle
school or secondary school . . . .”). The Defendant is not entitled to relief on this issue.

                                       2. Duplicitous Charge

        The Defendant next claims that the trial court erred in instructing the jury because the pattern
jury instruction used for “sale” and “delivery” have the effect of creating a duplicitous charge.
“Deliver” is defined in Tennessee Code Annotated section 39-17-402(6) as “the actual, constructive
or attempted transfer from one person to another of a controlled substance whether or not there is
an agency relationship.” Although not defined by the statute, the pattern jury instructions given by
the court define sale as “a bargained for, offer and acceptance and an actual or constructive transfer
or delivery of the substance.” T.P.I. – Crim. 31.01 (10th ed.). As noted in the footnotes to the
definition, the definition of “sale” is taken from State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim.
App. 2002). The Defendant asserts that, because the word “delivery” is a portion of the definition
of “sale,” the “sale” presentment is duplicitous, and duplicity is fatal to a presentment.

        Generally, it is impermissible to charge two distinct offenses in a single count indictment.
See State v. Jefferson, 529 S.W.2d 674, 678 (Tenn. 1975). In other words, “all crimes arising from
the same incident that are not lesser included offenses of another crime charged in the indictment
must be charged in separate counts.” State v. Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App.
1995). In the case at bar, the Defendant was charged in separate counts, thus the charge is not
duplicitous. See State v. Angela E. Isabell, No. M2002-00584-CCA-R3-CD, 2003 WL 21486982,
at *3 (Tenn. Crim. App., at Nashville, June 27, 2003) (“[I]f the indictments underlying the offenses
had charged the offenses in separate alternative counts; e.g., count one the sale of crack cocaine,
count two the delivery of crack cocaine; the indictment would not be faulty.”), no Tenn. R. App. P.
11 application filed. The jury instructions were, in this respect, consistent with the law. We
recognize the Defendant’s argument, that sale includes delivery, is sound based on the definitions.


                                                  15
We see no harm, however, because the charges were separate.

        Separately, the Defendant argues that the “delivery” charge is similarly duplicitous because
it necessarily includes attempted delivery. Our review of the record indicates that the trial court did
not instruct the jury on attempt to deliver cocaine within 1000' of school property. This decision was
proper because “delivery,” in effect, includes attempted delivery. Such is similarly the case with
resisting arrest and attempting to resist arrest – there is no such crime. See State v. William Harlon
Adams, No.M2003-02952-CCA-R3-CD, 2005 WL 1353301, at *9-10 (Tenn. Crim. App., at
Nashville, June 8, 2005), perm. app. denied (Tenn. Dec. 5, 2005). There being no crime, the charge
was not duplicitous. The Defendant is not entitled to relief on this issue.

                                     3. Lesser Included Offenses

       The Defendant next asserts that the trial court erred in instructing the jury on criminal
responsibility, attempt to sell, and facilitation to sell or deliver, and not instructing on solicitation.
The Defendant admits he did not object to these issues at trial or in his motion for a new trial.

       A trial court is required to instruct on crimes “supported by the evidence.” State v. Page, 184
S.W.3d 223, 229 (Tenn. 2006). Despite this, Tennessee Code Annotated section 40-18-110(c) places
a burden on the defendant:

        (b) In the absence of a written request from a party specifically identifying the
        particular lesser included offense or offenses on which a jury instruction is sought,
        the trial judge may charge the jury on any lesser included offense or offenses, but no
        party shall be entitled to any such charge.

        (c) Notwithstanding any other provision of law to the contrary, when the defendant
        fails to request the instruction of a lesser included offense as required by this section,
        such instruction is waived. Absent a written request, the failure of a trial judge to
        instruct the jury on any lesser included offense may not be presented as a ground for
        relief either in a motion for a new trial or on appeal.

In analyzing this issue, the Tennessee Supreme Court stated, “While an erroneous or inaccurate jury
charge may be cited as error for the first time in a motion for a new trial or on appeal, a trial court’s
incomplete jury charge may be cited as error on appeal only if the defendant requested a
lesser-included offense charge at trial.” Page, 184 S.W.3d at 229 (citing State v. Faulkner, 154
S.W.3d 48, 58 (Tenn. 2005)). Thus, because the Defendant alleges the instructions given to the jury
on criminal responsibility, attempt to sell, and facilitation to sell or deliver were erroneous, we will
address those claims.

                                             a. Solicitation

        The Defendant’s first complaint, that the court failed to charge solicitation, is, in our view,


                                                   16
a claim that the court gave an incomplete charge. The State notes that the Defendant did not request
the trial court charge solicitation. Under Page, because this charge was not requested, the issue is
waived. Id.

                                     b. Criminal Responsibility

        The Defendant argues that, because the presentments did not allege the conduct was as a
result of criminal responsibility, see T.C.A. § 39-11-402 (1997), the failure to include such a
provision prohibited the State from presenting evidence thereof and the court from instructing
thereon. The Defendant fails to cite any authority in support of this position. State v. Lemacks
directly addressed this argument and rejected it. 996 S.W.2d 166, 169-71 (Tenn. 1999). The
Defendant is not entitled to relief on this issue.

                                     c. Attempt and Facilitation

        The Defendant next argues that the trial court erred in instructing the jury on attempt to sell
more than 0.5 grams of cocaine within 1000' of school property, facilitation of sale of more than 0.5
grams of cocaine within 1000' of school property, and facilitation of delivery of more than 0.5 grams
of cocaine within 1000' of school property. The Defendant argues that, because section -432 states
solicitation to commit a section -417 crime within 1000' of a school is similarly treated as one
classification higher, this necessarily excludes attempt and facilitation crimes.

         We disagree; in our view, the criminal attempt provisions apply to Drug Free School Zones
crimes. If one attempts to sell cocaine within 1000' feet of a school, he is guilty of attempt to commit
a section -417 crime, with an enhanced penalty under section -432. This same logic applies to
facilitation. The trial court did not err in instructing the jury on attempt and facilitation crimes. The
Defendant is not entitled to relief on this issue.

                                            4. Entrapment

       Next, the Defendant argues that the trial court erred in refusing to instruct the jury on
entrapment. Tennessee Code Annotated section 39-11-505 provides for the defense as follows:

        It is a defense to prosecution that law enforcement officials, acting either directly or
        through an agent, induced or persuaded an otherwise unwilling person to commit an
        unlawful act when the person was not predisposed to do so. If a defendant intends to
        rely on the defense of entrapment, the defendant shall give to the district attorney
        general a notice comparable to that required for an insanity defense under Rule 12.2
        of the Tennessee Rules of Criminal Procedure.

This Court in State v. Blackmon further described the threshold showing needed for a trial court to
instruct on entrapment:



                                                   17
       The threshold question of whether the defense of entrapment has been “fairly raised”
       is for determination by the judge and not the jury. Nonetheless, where the proof
       fairly raises the issue of entrapment, and the proof is supported by credible evidence,
       the trial court is required to give the instruction of entrapment whether requested or
       not. To determine when this statutory defense is fairly raised by the proof so as to
       require its submission to the jury, a court must, in effect, consider the evidence in the
       light most favorable to the defendant, including all reasonable inferences flowing
       from that evidence. See State v. Bult, 989 S.W.2d 730, 733 (Tenn. Crim. App. 1998),
       perm. to appeal denied, (Tenn. 1999) (citing State v. Shropshire, 874 S.W.2d 634,
       639 (Tenn. Crim. App. 1993)). Thus, if entrapment is, in fact, “fairly raised by the
       proof,” the issue of predisposition becomes a question of fact for the jury. See also
       Sherman v. United States, 356 U.S. at 377, 78 S. Ct. 819.

78 S.W.3d 322, 331 (Tenn. Crim. App. 2001).

         We recognize that proof that the State lured a defendant into the 1000' school zone would
“fairly raise” an entrapment defense. This case, however, presented no facts to support such a claim.
In fact, the Defendant repeatedly denied raising an entrapment defense when the State attempted to
put on proof that it did not lure the Defendant into the 1000' zone. The issue was not “fairly raised”
by the proof, and the Defendant is not entitled to relief on this issue.

                                             5. Election

        The Defendant additionally argues that the jury’s verdict may not have been unanimous
because the State failed to elect whether to measure the distance from the real property or the school
buildings. The election requirements ensures that “the jury focuses on and is unanimous with respect
to that conviction.” State v. Brown, 992 S.W.2d 389, 392 (Tenn. 1999). The State is required to
make an election of offenses “when it is pursuing convictions for discrete crimes and proof of
additional discrete crimes has been introduced at trial.” State v. Hoxie, 963 S.W.2d 737, 742 (Tenn.
1998).

        In State v. Marvin L. Locke, a panel of this Court indeed concluded that the 1000' border not
only applied to the real property, but also the school building. No. E2005-01359-CCA-R3-CD, 2006
WL 2684827, at *2 (Tenn. Crim. App., at Knoxville, Sept. 18, 2006). Under this decision, it would
be possible to be convicted of the crime if the evidence showed the Defendant sold cocaine within
1000' of the school building. As noted above, the Defendant attempted to introduce evidence that
the location of the sale and delivery was more than 1000' from the school buildings. The trial court
prevented this, ruling that such evidence was irrelevant because enhancement could be had if the
proof showed the location was within 1000' of a school’s real property. The only evidence presented
by the State in this case showed that the location of the sale to be within 1000' of the school’s real
property. In our view, even if the State attempted to present evidence that the location was within
1000' of both the real property and the building, no election would be required because these are not
“discrete crimes.” Therefore, no election is required under Hoxie. The Defendant is not entitled to


                                                  18
relief on this issue.

                                                   E. Bifurcation

         The Defendant next argues that the trial court should have bifurcated the trial into a trial on
the sale and delivery and a trial on the location. In support of his argument, the Defendant cites to
State v. Antonio Rico Walls, No. M1998-00358-CCA-R3-CD, 2002 WL 1343234, at *1 (Tenn. Crim.
App., at Nashville, June 20, 2002), perm. app. denied (Tenn. Nov. 12, 2002). While Walls notes the
trial court bifurcated a Drug Free School Zones trial, there is no explanation or analysis of the reason.
The Defendant has not cited any additional authority in support of his position, and we know of no
reason that would require a trial court to bifurcate this case. The Defendant is not entitled to relief
on this issue.8

                                                   F. Sentencing

        Finally, the Defendant alleges his sentence violates the Sixth Amendment to the United
States Constitution, because the trial court’s imposition of the twenty-year sentence required judicial
fact-finding outside that allowed by Blakely v. Washington, 542 U.S. 296 (2004). The underlying
felony, sale of more than 0.5 grams of cocaine, is a B felony. T.C.A. § 39-17-417(b) (1997). If the
sale occurs within 1000' of a school, the crime is enhanced to become an A felony. T.C.A. § 39-17-
432(b) (1997). For A felonies, the sentence range is fifteen to twenty-five years. T.C.A. § 40-35-
112(a) (1997). In sentencing for an A felony, a trial court is required to begin at the midpoint in the
range, twenty years, and adjust up for enhancement factors and then down for mitigating factors.
T.C.A. § 40-35-210(e) (1997). Under recent case law, the ability to enhance under the 1989
Sentencing Reform Act is, for the most part, limited to previous criminal convictions.

         The Defendant bases his argument in the fact that the jury verdict did not specify that the
school was a “public middle school” or that the sale occurred within 1000' of that school. Therefore,
the Defendant argues, the trial court must have conducted independent fact finding in order to
enhance the conviction to an A felony. We reject this argument. The jury convicted the Defendant
of selling cocaine in violation of the Drug Free School Zones Act. Inherent in this conviction is the
fact finding by the jury that the offense occurred within 1000' of a public middle school. The trial
court began the Defendant’s sentence at the statutorily required 20 years and did not adjust up or
down. There is no Blakely violation based on these facts. The Defendant is not entitled to relief on
this issue.

                                                  III. Conclusion



         8
          W ithin this argument, the Defendant also complains that the trial court erred in refusing to instruct the jury
that the Defendant needed to know he was inside a school zone. Case law forecloses this argument. See State v.
Smith, 48 S.W .3d 159, 166-69 (Tenn. Crim. App. 2000); State v. Jenkins, 15 S.W .3d 914, 917 (Tenn. Crim. App.
1999).

                                                           19
        After a thorough review of the record and applicable law, we conclude the Defendant is not
entitled to any relief on these issues. The judgment of the trial court is affirmed.


                                                         ________________________________
                                                          ROBERT W. WEDEMEYER, JUDGE




                                               20
