         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                           APRIL, 1998 SESSION
                                                         July 9, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,            )    No. 03C01-9708-CR-00336
                               )
      Appellee                 )
                               )    McMinn County
vs.                            )
                               )    Honorable, R. Steven Bebb, Judge

                               )
PHIL WILKERSON,                )    (Sale of Cocaine)
                               )
      Appellant.               )



FOR THE APPELLANT:                  FOR THE APPELLEE:

CHARLES M. CORN                     JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter
P.O. Box 1453
Cleveland, TN 37364-1453            CLINTON J. MORGAN
                                    Counsel for the State
                                    Criminal Justice Division
                                    425 Fifth Ave. North
                                    2nd Floor, Cordell Hull building
                                    Nashville, TN 37243-0493

                                    JERRY N. ESTES
                                    District Attorney General
                                    Washington Ave.
                                    Athens, TN 37303

                                    AMY REEDY
                                    Assistant District Attorney General
                                    P.O. Box 647
                                    Athens, TN 37303-1453



OPINION FILED: ____________________


AFFIRMED AND REMANDED


CURWOOD WITT
JUDGE
                                     OPINION

              The defendant, Phil Wilkerson,1 was convicted in a bench trial in the

McMinn County Criminal Court of two counts of the sale of less than .5 gram of

cocaine, a class C felony. As a career offender, he was sentenced to fifteen years,

the mandatory maximum penalty, on each count. The trial court ordered that

sentences in the instant case run concurrently but that they be served consecutively

to a twelve-year sentence on a prior conviction. In this appeal, the defendant

contends that the evidence was insufficient to prove that he was the seller of the

cocaine rather than a procuring agent for the purchaser and that the trial court erred

in running the fifteen-year sentences consecutively to the earlier sentence. We find

the evidence sufficient to support the defendant’s convictions but remand the case

to the trial court for reconsideration of the consecutive sentencing issue.



              The defendant waived trial by jury and was tried on two counts of sale

of cocaine weighing less than five-tenths of a gram. The defendant was arrested

after Heather Morris, an undercover officer for the Athens Police Department,

purchased cocaine from him on two occasions. The sales were electronically

recorded and monitored by William Matthews, another Athens police officer. The

tapes were played for the jury.



               According to Officer Morris’s testimony, the two transactions followed

a similar pattern. At about 11:40 p.m. on October 1, 1996, she drove down Kilgore

Street in Athens, an area known for drug sales. The officer was familiar with

Wilkerson through her study of the photographs of known street salesmen.2 When

she saw him standing in a group of several men, she pulled over and asked if she

could get “a hundred,” that is, a hundred dollars worth of cocaine. The defendant



       1
              The grand jury indicted the defendant as Phil Wilkerson. Other
documents and the briefs indicate that his name is Stanley Phil Wilkerson. In
accordance with the custom of this court, we use the defendant’s name as given
in the indictment.
       2
               She and Officer Matthews both testified that the defendant has
very distinctive features. The record does not indicate what those features are.

                                          2
said, “Yeah, circle the block.” She gave the defendant one hundred dollars and

drove around the block. When she returned, the defendant gave her eight “rocks”

or pieces of cocaine. The second sale occurred on October 4 at about 9:50 p.m.

On this occasion, she once again gave one hundred dollars to the defendant. On

the tape, the voice identified as the defendant’s told her to drive around the block,

and he would get the cocaine from some undisclosed third person. After circling the

block, she received ten “rocks” of cocaine from the defendant.3 At another point,

the defendant mentioned that he would be “taken care of at the end of the evening.”

Ms. Morris stated that it was her understanding that the defendant was getting the

drugs from a third party. She positively identified the defendant as the person who

sold her the cocaine.



              The defendant testified in his own behalf and stated that he probably

had taken part in the transactions with Officer Morris. He said that as a drug addict

he acted as a street seller for a third party. He never received any money from the

transactions but generally received some crack cocaine for his own use.

Sometimes the third party provided him with some crack, and sometimes he just

helped himself to a piece before he delivered it to the customer.



              Based on this evidence, the trial judge found the defendant guilty of

two counts of the sale of cocaine.



              A guilty verdict accredits the testimony of the state’s witnesses and

resolves all conflicts in favor of the state’s theory. State v. Hatchett, 560 S.W.2d

627, 630 (Tenn. 1978). The state is entitled to the strongest legitimate view of the

evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).       It is the appellate

court’s duty to affirm the conviction if the evidence, viewed under these standards,


       3
              The defense stipulated to the admission of the laboratory reports
that indicated that the material Officer Morris received from the defendant
contained cocaine.

                                         3
was sufficient for any rational trier of fact to have found the essential elements of

the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317,

99 S. Ct. 2781, 2789; State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R.

App. P. 13(e). The appellate court will not disturb a verdict of guilty due to

sufficiency of the evidence unless the facts contained in the record, together with

appropriate inferences, are insufficient as a matter of law to sustain the verdict.

State v. McPherson, 882 S.W.2d 365, 369 (Tenn. Crim. App. 1994).



              To convict a defendant of the sale of cocaine, the state must prove

that the defendant knowingly sold a controlled substance. Tenn. Code Ann. § 39-

17-417(a)(3) (1997). The defendant does not deny that he gave Officer Morris

baggies containing crack cocaine. In fact, he stipulated that each baggy contained

.4 gram of a substance containing cocaine. Nor does he contend that he acted

unknowingly when he received the money and delivered the cocaine to Officer

Morris.4    The defendant contends that the evidence does not prove that the

transactions constituted sales. He relies upon this court’s holding in State v.

Baldwin, 867 S.W.2d 358 (Tenn. Crim. App. 1993), to argue that as the “procurer”

of the cocaine, he may be convicted only of simple possession. For the reasons

discussed below, we find that the defendant’s transactions with Officer Morris were

sales and that the evidence submitted at trial is more than sufficient to prove that

the defendant is guilty of knowingly selling cocaine.



              The defendant’s reliance on Baldwin is misplaced. In Baldwin, this

court modified the defendant’s conviction for selling cocaine to one for possession.

Id. at 359. The undercover officer in Baldwin offered to give the defendant a ride

home. Neither Baldwin nor another man who was riding in the car knew that the

driver was a police officer. Id. When the undercover officer and the other man




       4
              “Knowing” refers to a person who acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware
of the nature of the conduct or that the circumstances exist. . . .” Tenn. Code
Ann. § 39-11-302 (1997).

                                         4
discussed purchasing drugs, Baldwin suggested that they drive to the area where

her nephew might have some for sale. When she spotted her nephew, the other

man took a twenty-dollar bill from the officer. Id. He and Baldwin approached a

man who accepted the money and handed the defendant a “rock.” Upon their

return to the car, the officer directed the defendant to give him the rock. When she

complied, the officer arrested her. Id. In modifying the conviction, this court found

that, although her actions had facilitated the sale, the fact that she brought the

drugs back to the car was insufficient to establish her intent to participate in the

sale. Id. at 360.



              The facts of this case prove beyond a reasonable doubt that the

defendant participated in two sales of cocaine. In State v. William (Slim) Alexander,

No. 01C01-9302-CR-00063, slip op. at 4 (Tenn. Crim. App., Nashville, Mar. 24,

1994), this court adopted the general definition of “sale” found at Black’s Law

Dictionary 1200 (5th ed. 1979) as “a contract between two parties by which the

seller, in consideration of the payment or promise of payment of a certain price in

money, transfers to the buyer the title and possession of the property.” Alexander,

slip op. at 4. According to this definition, a sale consists of two broad components:

a bargained-for offer and acceptance, and an actual or constructive transfer or

delivery of the subject matter property. Id. In this case, Officer Morris offered to

purchase a certain amount of cocaine for a given price. The defendant accepted

the payments. One who accepts payment in exchange for property is involved in

a sale. State v. David Henning, No. 02C01-9404-CC-00079, slip op. at 5 (Tenn.

Crim. App., Jackson, Oct. 26, 1994). In both transactions, Wilkerson not only

accepted the payment but delivered the property as well. In Baldwin, on the other

hand, the defendant pointed out the person who was selling drugs, accompanied

a third person who had the money to the transaction and then carried the controlled

substance from the seller to the undercover officer. Thus the court found that the

evidence was not sufficient to demonstrate that the defendant had the intent to

participate in a sale. In this case, however, Wilkerson’s actions satisfy the two



                                         5
broad requirements of a “sale.” See Alexander, slip op. at 4. In both transactions

he accepted an offer and delivered the property. We find that the evidence in the

record is sufficient for a rational trier of fact to conclude beyond a reasonable doubt

that the defendant participated in knowing sales of cocaine on October 1 and

October 4, 1996. See State v. Michael Wayne Henry, No. 02C01-9611-CC-00382,

slip op. at 9-12 (Tenn. Crim. App., Jackson, May 29, 1997).



              In his second issue, the defendant contends that the trial court erred

by ordering him to serve the two concurrent fifteen-year sentences consecutively

to a previous twelve year sentence. The defendant argues that the trial judge erred

in finding that the law required the court to run the fifteen-year sentences

consecutively to his earlier sentence and that a twenty-seven year sentence is

disproportionate to the seriousness of the offenses. Because the law does not

mandate consecutive sentencing in this instance, we remand the case to the trial

court for reconsideration of the issue of concurrent and consecutive sentencing in

light of Rule 32 (c) of the Tennessee Rules of Criminal Procedure and Tennessee

Code Annotated sections 40-35-115 and 310.



              At the conclusion of the sentencing hearing, the trial court found that

the defendant was a career offender with nine prior B and C felonies and sentenced

him on both counts to the maximum sentence within the applicable range as

required by Tennessee Code Annotated section 40-35-108(a)(1). The trial judge

also found that (1) deterrence was a requirement because of the increase in

cocaine use in McMinn County; (2) although the defendant was presently addicted

to cocaine, he had previously lived a productive life; (3) the defendant had

committed numerous crimes since 1993; (4) he had demonstrated an unwillingness

to comply with conditions of release; and (5) he was on probation when he sold the

cocaine to Officer Norris. The trial judge stated:

              I guess the only thing that I can do, that I feel like I can
              do is to run those two sentences concurrently, that is, at
              the same time. However, since they were committed at
              a time when you were on probation from this court


                                           6
             these sentences must run consecutive to your priors,
             which were all concurrent type things, for a total of
             twelve years. (Emphasis added).

The court then sentenced the defendant to an effective sentence of 27 years with

15 years to be served at 60% as a career offender.



             The trial court apparently believed that if a defendant were on

probation when the current offense was committed, he had no choice but to run the

sentence for the current offense consecutively to the unexpired sentence.5 The law

does not mandate such a result. See Tenn. Code Ann. §§ 40-335-115(b), -310

(1997); Tennessee Rules of Criminal Procedure 32(c).



             The procedure the trial court must follow in deciding whether or not a

sentence should be served concurrently or consecutively with an unexpired

sentence is set out in Rule 32(c)(2) of the Tennessee Rules of Criminal Procedure:

             Sentence When Defendant Has Prior Sentence Not
             Fully Served. -- If the defendant has additional
             sentences not yet fully served as the result of
             convictions in the same court or in other courts of this
             state and if this fact is made known to the court prior to
             sentencing, the court shall recite this in the judgment
             setting sentence, and the sentence imposed shall be
             deemed to be concurrent with the prior sentence or
             sentences, unless it affirmatively appears that the new
             sentence being imposed is to be served consecutively
             with the prior sentence or sentences.



             This court has previously held that the exercise of discretion given the

trial court by Tennessee Rules of Criminal Procedure 32(c)(2) essentially involves

the consideration of the sentencing criteria provided in Tennessee Code Annotated

section 40-35-115(b) (1990). State v. Larry G. Hart, No. 02C01-9406-CC-00111

(Tenn. Crim. App., Jackson, June 28, 1995), opinion on pet. for reh’g (Tenn. Crim.




      5
              The court may have been thinking of the Tennessee Code
Annotated section 40-20-111(b) which requires the imposition of consecutive
sentences when the defendant commits a felony while he is on bail and is
convicted for both offenses.

                                         7
App., Jackson, Jul. 26, 1995).6 In Hart, the trial court stated that a consecutive

sentence was mandatory because the offense was committed while the defendant

was serving a sentence on community corrections. Slip op. at 11. The panel

remanded the case to the trial court to allow the trial court to exercise its discretion

in determining whether the sentence in the case at bar should run concurrently with

or consecutively to the prior sentence.        Slip op. at 12.     Such a remand is

appropriate in this case as well.



              The Hart court instructed the trial court to proceed according to rule

32(c)(2) of the Tennessee Rules of Criminal Procedure. However, in determining

whether the sentence imposed should be served concurrently with or consecutively

to the prior sentence, the trial court should consider the statutory criteria set forth

in Tennessee Code Annotated section 40-35-115.7

              Upon remand, the trial court in this case has the discretion to order

that the fifteen-year sentences be served concurrently with or consecutively to the

unexpired twelve-year sentence. In making this determination, the trial judge should

consider the statutory criteria in Tennessee Code Annotated section 40-35-115 as

well as the purposes and principles of the Sentencing Reform Act of 1989. See

Tenn. Code Ann. §§ 40-35-102, -103 (1997). Consecutive sentences should not

be routinely imposed and the aggregate maximum of consecutive terms must be

       6
             See also State v. Michael W. Kaufmann, No. 03C01-9607-CC-
00260, slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 22, 1997); State v. Charles
Clay Young, No. 01C01-9605-CC-00195, slip op. at 15 (Tenn. Crim. App.,
Nashville, Aug. 15, 1997); State v. Lisa Gaye Copeland, No. 03C01-9605-CC-
00196, slip op. at 6 (Tenn. Crim. App., Knoxville, May 13, 1997); State v.
Thomas Edward Capps, No. 01C01-9506-CC-00164, slip op. at 4 (Tenn. Crim.
App., Nashville, Feb. 29, 1996).
       7
               Another statutory basis for ordering consecutive sentencing in this
situation is found in Tennessee Code Annotated section 40-35-310 which
provides that
        [i]n any case of revocation [of probation] on account of conduct by
        the defendant which has resulted in a judgment of conviction
        against him during his period of probation, the trial judge may order
        that the term of imprisonment imposed by the original judgment be
        served consecutively to any sentence which was imposed upon
        such conviction.”
This section as well as section 40-35-115(b)(6) allows for consecutive service of
the prior unexpired sentence. See State v. Moore, 942 S.W.2d 570, 573 (Tenn.
Crim. App. 1996).

                                           8
reasonably related to the severity of the offenses involved. Tenn. Code Ann. § 40-

35-115 Sentencing Comm’n Comments (1997). Lengthy consecutive sentences

may be imposed when such confinement is necessary to protect society against

further criminal conduct. Tenn. Code Ann. § 40-35-103 (1) (1997). If the trial judge

again orders consecutive sentences, he should state in his order the statutory

provisions on which he relies and make the specific findings of facts which support

consecutive sentencing. See Tenn. R. Crim. P. 32(c)(1).



              We affirm the defendant’s convictions and the two fifteen-year

concurrent sentences for the sale of less than .5 gram of cocaine. This case is

remanded to determine whether the sentence should be served concurrently with

or consecutively to the prior sentence.


                                                 __________________________
                                                 CURWOOD W ITT, Judge

CONCUR:



______________________________
PAUL G. SUMMERS, Judge



______________________________
JERRY L. SMITH, Judge




                                          9
