        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 20, 2015

        STATE OF TENNESSEE v. EUGENE BERNARD CUDDY, III

                 Appeal from the Criminal Court for Sullivan County
                         No. S60204   R. Jerry Beck, Judge


               No. E2014-01724-CCA-R3-CD – Filed November 23, 2015
                         _____________________________

Defendant, Eugene Bernard Cuddy, III, was indicted in a three-count indictment by the
Sullivan County Grand Jury for possession of Oxycodone, a Schedule II controlled
substance, with intent to sell or deliver, possession of drug paraphernalia, and possession
of Alprazolam, a Schedule IV controlled substance, with intent to sell or deliver.
Defendant filed a motion to suppress evidence seized during a search of Defendant‟s
person. Following a hearing, the trial court denied Defendant‟s motion to suppress.
Defendant was convicted as charged. The trial court sentenced Defendant to an effective
sentence of seven years‟ incarceration. In this appeal as of right, Defendant contends
that: 1) the trial court erred by denying Defendant‟s motion to suppress; 2) the evidence
is insufficient to sustain his convictions; 3) the trial court erred by instructing the jury that
it could infer Defendant‟s intent from the amount of controlled substances Defendant
possessed; and 4) the trial court abused its discretion in sentencing Defendant. Having
reviewed the entire record and the briefs of the parties, we find no error. Accordingly,
the judgments of the trial court are affirmed.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Stephen M. Wallace, District Public Defender; and Andrew J. Gibbons, Assistant Public
Defender, Blountville, Tennessee, for the Appellant, Eugene Bernard Cuddy, III.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Barry Staubus, District Attorney General; and Joshua Parsons, Assistant Public Defender,
for the Appellee, State of Tennessee.
                                       OPINION

Motion to suppress

        On October 24, 2011, Kingsport Police Officer Scott Denney responded to a
robbery call at the Red Roof Inn in Kingsport. When he arrived, he saw Defendant
bleeding from his head and face. Officer Denney testified that Defendant was coherent.
Defendant told Officer Denney that he had been robbed at gunpoint by a female and two
males. Officer Denney testified that he believed “there was something more to it”
because Defendant‟s account of what happened was inconsistent with that of witnesses to
the event. Defendant told Officer Denney that a female knocked on his motel room door,
and Defendant thought she was there to clean the room, so he opened the door for her.
Two men came into the room with her. One of the men hit Defendant in the face with a
pistol. Defendant had multiple wounds on his face and the back of his head.

        Sergeant Sean Chambers also responded to the scene. Defendant told Sergeant
Chambers that the assailants knocked on the door to his motel room, and when Defendant
opened the door, they forced their way into his room, assaulted him, and bound his hands
with duct tape. Defendant stated that he did not know anyone in Kingsport, and it was a
random act. Sergeant Chambers was skeptical of Defendant‟s story because he did not
recall in his experience in law enforcement a random robbery at a motel. Defendant was
coherent. Sergeant Chambers asked Defendant when he had last taken illegal drugs, and
Defendant answered that he did not use illegal drugs or drink alcohol. Sergeant
Chambers asked Defendant for consent to search his person, and Defendant consented.
Sergeant Chambers did not handcuff or otherwise restrain Defendant. Sergeant
Chambers found a plastic bag containing smaller plastic bags inside Defendant‟s coat
pocket. During the search, Defendant reached for his crotch area. Sergeant Chambers
testified that he feared for his safety because he did not know whether Defendant had a
weapon in his possession. Sergeant Chambers took Defendant to the ground. He saw
that Defendant was holding in his right hand a plastic bag containing individually
packaged pills. Sergeant Chambers placed Defendant under arrest, and Defendant was
transported to the hospital for medical treatment of his wounds.

        Bradley Mayes, a front desk clerk at the Red Roof Inn at the time of the incident,
testified that he found Defendant in his room screaming, “Help!” The door was open and
the “room was a wreck.” Defendant was “bloodied [and] beaten.” Defendant had duct
tape on his neck, his wrists, and his ankles. Mr. Mayes testified that Defendant appeared
to be “totally dazed,” and he was “not really” coherent. Mr. Mayes told Defendant that
he was going to call 911 and that Defendant needed to go to the hospital, and Defendant
responded, “no, no, no, no” and told Mr. Mayes that he would take himself to the
hospital.
                                              2
       Defendant testified at the hearing that he was robbed at gunpoint in his motel room
on October 24, 2011. He testified that his attackers put duct tape over his mouth and
around his hands and feet and repeatedly hit him in the face and head with a pistol.
Defendant lost consciousness. When he regained consciousness, he removed the duct
tape and called for help. He testified that he ran out of the room, “trying to chase them
down.” Defendant did not remember giving his consent to Sergeant Chambers to search
him. Defendant testified that he was giving Sergeant Chambers a description of his
attackers when Sergeant Chambers “reached out and grabbed [him], put his hands on
[him]. And [Defendant] pulled away from him. And then [Sergeant Chambers] slammed
[Defendant] to the ground” and handcuffed him.

        At the conclusion of the hearing, the trial court found that Defendant “appeared to
be acting rationally when Officer Denney took his oral statement about the robbery, and
when Mr. Mayes talked to him. He appeared to be acting logically.” The court noted
that although Mr. Mayes testified that Defendant did not appear to be coherent, “[Mr.
Mayes] did have a conversation with [Defendant], again all showing an awareness of his
surroundings, what had happened, and that the police had been called and what-have-
you.” The court noted that Defendant‟s statements to Mr. Mayes, Officer Denney, and
Sergeant Chambers were consistent. The trial court rejected Defendant‟s argument that
he did not have the capacity to consent to a search and found that despite his injuries,
“Defendant did have the capacity based on overall evidence.”

      The trial court accredited Sergeant Chambers‟ testimony that he obtained
Defendant‟s consent to conduct a search of Defendant‟s person. The trial court noted that
Sergeant Chambers was unequivocal in his testimony, and Defendant “was vague in his
remembering what conversation he had with [Sergeant] Chambers.” The trial court
denied Defendant‟s motion to suppress.

Trial

       At trial, Officer Denney testified that he responded to the Red Roof Inn on
October 24, 2011. When he arrived, he saw Defendant in the parking lot. Defendant‟s
head and face were bleeding. Defendant had duct tape hanging from his hands and legs.
Defendant had refused treatment from EMS workers that were at the scene. Officer
Denney testified that Defendant was coherent. Defendant was standing up, and he was
steady on his feet. Based on information that Defendant provided to him, Officer Denney
called Sergeant Chambers to assist him in the investigation of what had happened.
Officer Denney testified that he was standing away from Defendant and Sergeant
Chambers, and he could not hear their conversation. Officer Denney saw Defendant and
Sergeant Chambers in a struggle, and he went to assist Sergeant Chambers. Sergeant
                                            3
Chambers had Defendant on the ground, and Officer Denney handcuffed Defendant.
Officer Denney saw a bag of pills packaged individually in smaller bags. Officer
Denney transported Defendant to the hospital for medical treatment.

        Sergeant Chambers testified that he was called to the scene by Officer Denney.
Sergeant Chambers spoke to Defendant when he arrived. He testified that Defendant had
blood on his face, and Defendant “seemed kind of nervous.” Defendant told Sergeant
Chambers that he had been robbed. Sergeant Chambers testified that he asked Defendant
when Defendant last used illegal drugs, and Defendant responded that he did not use
illegal drugs or drink alcohol. Sergeant Chambers asked Defendant if he had any
weapons on his person, and Defendant replied that he did not. Sergeant Chambers then
asked Defendant for consent to search his person, and Defendant consented. Sergeant
Chambers found a plastic bag containing other small plastic bags inside Defendant‟s
jacket pocket. Sergeant Chambers asked Defendant again if he had any illegal drugs on
his person, and Defendant responded that he did not. Sergeant Chambers continued his
search of Defendant, and he noticed that “[Defendant‟s] hands kept working their way
back down towards his crotch area.” Sergeant Chambers asked Defendant to keep his
arms raised. Defendant again lowered his arm, and Sergeant Chambers again
admonished him to keep his arms raised. When Defendant began to lower his arm again,
Sergeant Chambers grabbed Defendant‟s left arm and raised it. Defendant then
immediately reached for his crotch area with his other hand, “and it was lightning fast
when he moved that arm.” Sergeant Chambers “grabbed [Defendant]‟s upper torso and
took him to the ground.” He testified, “on the way to the ground, I noticed that in his
right hand he now had a plastic [b]aggie.” Sergeant Chambers handcuffed Defendant and
removed the plastic bag from his hands.

        Detective Daniel Lane was assigned to the Vice and Narcotics Unit of the
Kingsport Police Department at the time of Defendant‟s arrest. He responded to the
scene to assist with the investigation of the robbery. Defendant had already been placed
under arrest when Detective Lane arrived. Detective Lane testified that officers had
removed from Defendant‟s possession “two pouches of the pills, and then one empty
pouch that they were inside[;]” a bag containing five smaller baggies, each containing 20
pills; and a plastic shopping bag containing smaller Ziploc bags and rubber bands.
Detective Lane testified that based on his experience, the packaging of the pills in small
bags indicated that they were for resale. He testified, “[f]rom the work that I‟ve done,
people package their pills like that to be sold.”

        Tennessee Bureau of Investigation Special Agent Sharon Norman testified that she
identified the pills recovered from Defendant as 120 Oxycodone tablets and 19
Alprazolam tablets. Agent Norman noted that the Oxycodone tablets were from two

                                            4
different manufacturers, and the Alprazolam tablets were also from two different
manufacturers.

       Defendant did not testify at trial. The parties stipulated that Defendant‟s
pharmacy records be admitted as evidence. The records showed that Defendant had
several prescriptions for Oxycodone and Alprazolam filled between 2011 and 2012. The
pharmacy records did not contain any information concerning the use and frequency of
the drugs. The records showed that on September 6, 2011, approximately seven weeks
prior to his arrest, Defendant filled prescriptions for 175 30-milligram tablets of
Oxycodone HCL and 60 15-milligram tablets of Oxycodone HCL at a CVS pharmacy in
Deland, Florida. On October 5, 2011, approximately three weeks prior to his arrest,
Defendant again filled prescriptions for the same quantity and dosages of Oxycodone
HCL.

Sentencing hearing

        The presentence report was admitted as an exhibit at the sentencing hearing.
Defendant was 35 years old at the time of sentencing. He stipulated his status as a Range
II offender. Defendant testified that he had a substance abuse problem. Defendant
testified that he had never participated in a drug treatment program. Both of Defendant‟s
parents died when he was a teenager. Defendant did not finish high school. Defendant
was diagnosed with HIV after his mother died. Defendant did not begin receiving
treatment for HIV until a “couple of months” before his sentencing. Defendant requested
that the court sentence him to a drug treatment program. Defendant testified,

        I got to accept any sentence, whatever it is, and prison ain‟t – I‟m not
        scared to go to prison, obviously, or anything like that. But it‟s just I
        don‟t have – I ain‟t never been to a treatment program. I ain‟t even had
        counseling for being diagnosed [with HIV].

        You know what I mean?

        So sending me off to prison and going back to prison is just going to be –
        I – I haven‟t learned any tools – I – I haven‟t learned any tools of
        anything like that where I can maintain out there. So, I mean, sending
        me right back off to prison really isn‟t going to – going to do – do much
        for me. I mean, I know that‟s – it‟s probably the inevitable thing that‟s
        going to happen, but it‟s – it‟s true.




                                            5
      Defendant testified that his prescriptions were for arthritis in his back caused by
HIV. Defendant testified that he had “never been on pain medication prior to” being
diagnosed with HIV.

        At the conclusion of the sentencing hearing, the trial court considered the proof at
trial and stated that it had considered the presentence report. The trial court ruled, “[t]he
[c]ourt‟s of the opinion [that] probation should not be granted on any sentence I might
give.” The court found that Defendant had convictions in addition to those necessary to
establish his status as a Range II offender. The court also noted Defendant‟s “special
circumstances” and stated,

        The Court‟s required to consider as part of the rule, what would be just,
        what would be the best for [Defendant] and the community.

        Now, [Defendant] has HIV, which is a very serious condition. Evidently
        it‟s under control „cause he said he‟s had it for some time. I believe in
        his testimony, when you asked him about it, been some years he‟s been
        diagnosed.

       The court also noted that Defendant had absconded to Florida while awaiting trial,
and his bond was forfeited. The court considered Defendant‟s desire “to reform in
regards to he does have a drug problem. I think that‟s beyond question.” The trial court
imposed sentences of seven years in Count 1, 11 months and 29 days in Count 2, and five
years in Count 3, and ordered that Defendant‟s sentences be served concurrently, for an
effective sentence of seven years. The trial court denied Defendant‟s request for full
probation, finding:

        Now, and as previously stated, his prior record, prior revoked violations
        of probation, outstanding violations of probation, he would not meet the
        criteria where it would be in his interest or the State‟s interest or the
        People‟s interest that I place him on probation, so probation is denied.

Analysis

Motion to suppress

       Defendant contends that the trial court erred in denying his motion to suppress.
Defendant argues that his convictions were based on evidence that was seized from him
while he was illegally detained. The State responds that the evidence supports the trial
court‟s conclusion that the search was consensual and that Sergeant Chambers‟

                                             6
subsequent detention of Defendant resulted from a reasonable belief, that arose during the
consensual search, that Defendant posed a threat.

        On appeal from the denial of a motion to suppress, we defer to the trial court‟s
findings of fact unless the evidence in the record preponderates against them. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The “credibility of the witnesses, the weight
and value of the evidence, and [the] resolution of conflicts in the evidence are matters
entrusted to the trial court as the trier of fact.” Id. The prevailing party in the trial court
is afforded “the strongest legitimate view of the evidence . . . as well as all reasonable and
legitimate inferences that may be drawn from that evidence.” Id.

        Both the federal and state constitutions provide protections from unreasonable
searches and seizures. The general rule is that a warrantless search or seizure is
presumed unreasonable, and any evidence discovered by virtue thereof is subject to
suppression. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “[T]he most basic
constitutional rule . . . is that „searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth
Amendment – subject only to a few specifically established and well-delineated
exceptions.‟” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L.
Ed. 2d 564 (1971) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.
Ed. 2d 576 (1967)); see also State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997) (“[A]
warrantless search or seizure is presumed unreasonable, and evidence discovered as a
result thereof is subject to suppression unless the State demonstrates that the search or
seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant
requirement.”).

       Our federal and state courts have recognized three categories of police-citizen
interactions: (1) a full-scale arrest, which requires probable cause; (2) a brief
investigatory detention, requiring reasonable suspicion of wrongdoing; and (3) a brief
police-citizen encounter, requiring no objective justification.” State v. Echols, 382
S.W.3d 266, 277 (Tenn. 2012). “While arrests and investigatory stops are seizures
implicating constitutional protections, consensual encounters are not.”           State v.
Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006).           Even when there is no basis for
suspecting criminal activity, an “officer may approach an individual in a public place and
ask questions without implicating constitutional protections.” State v. Daniel, 12 S.W.3d
420, 425 (Tenn. 2000); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382,
115 L. Ed. 2d 389 (1991). “„Only when the officer, by means of physical force or show
of authority, has in some way restrained the liberty of a citizen may we conclude that a
„seizure‟ has occurred.‟” Daniel, 12 S.W.3d at 424 (quoting Terry v. Ohio, 392 U.S. 1,
19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).

                                              7
       Defendant asserts that “any consent [he] may have given was involuntary and
unreasonable under the Fourth Amendment.” “For consent to pass „constitutional
muster,‟ it must be „unequivocal, specific, intelligently given, and uncontaminated by
duress or coercion.‟” State v. Cox, 171 S.W.3d 174, 184 (Tenn. 2005) (quoting State v.
Simpson, 968 S.W.2d 776, 784 (Tenn. 1998)). “„[T]he existence of consent and whether
it was voluntarily given are questions of fact‟ which require examining the totality of the
circumstances.” Id. at 184-85 (quoting State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. Crim.
App. 1999)). When determining voluntariness, factors to consider include:

         (1) Time and place of the encounter; (2) Whether the encounter was in a
         public or secluded place; (3) The number of officers present; (4) The
         degree of hostility; (5) Whether weapons were displayed; (6) Whether
         consent was requested; and (7) Whether the consenter initiated contact
         with the police.

Id. at 185.

        We conclude that the evidence at both the suppression hearing and trial support
the trial court‟s conclusion that Defendant voluntarily gave his consent to be searched.
Police responded to an incident in which Defendant was the victim of a crime. Officer
Denney was the first officer to respond. He did not draw his weapon or indicate that
Defendant was not free to leave. He spoke to Defendant and listened to Defendant‟s
account of what had happened. When Sergeant Chambers arrived, he spoke to Defendant
outside of Officer Denney‟s presence. He also did not draw his weapon or indicate that
Defendant was not free to leave. Sergeant Chambers testified that based on Defendant‟s
behavior, Sergeant Chambers asked Defendant for consent to search his person, and
Defendant consented. The trial court accredited Sergeant Chambers‟ testimony that
Defendant was coherent and gave his consent to be searched. Defendant‟s testimony at
the suppression hearing was that he did not remember giving consent to be searched.
Although one witness who was an employee of the motel testified that Defendant was
“not really” coherent, the witness‟s testimony, as well as the testimony of the two officers
who responded to the scene, established that Defendant, though badly beaten, was aware
of his surroundings and able to give details about his experience. Considering the above
factors, two officers present at the scene, both having responded to an incident in which
Defendant was the victim of a crime, neither officer displaying his weapon, and their
encounters with Defendant were in a public place and were not hostile, we conclude that
Defendant‟s consent to be searched was voluntarily given.

      Defendant argues that he was illegally seized after he “tried to terminate the
encounter [and Sergeant] Chambers tackled him and placed him under arrest.”
Defendant acknowledges that Sergeant Chambers “had the authority to approach and
                                             8
question [Defendant], he did not have the further right to instruct [Defendant] to raise his
arms so that the officer could search him.” Defendant argues that he was illegally
detained at that point.

       We agree with Defendant‟s assertion that he was seized when Sergeant Chambers
made a show of authority by physically raising Defendant‟s arms. At that point, a
reasonable person would have believed that he or she was not free to leave. A consensual
police-citizen encounter becomes a seizure, thereby triggering a constitutional analysis of
the police action, “when an officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen.” Terry, 392 U.S. at 19 n. 16, 88 S. Ct.
1868. In determining whether a seizure has occurred, the key question is whether, “in
view of all the circumstances surrounding the incident, a reasonable person would have
believed that he or she was not free to leave.” Daniel, 12 S.W.3d at 425.

        Now, we must address whether the seizure was reasonable. The State argues that
Defendant‟s behavior during the initially consensual search gave Sergeant Chambers a
reasonable suspicion to believe that Defendant posed an immediate threat. Our supreme
court has held that “nervous, evasive behavior” by someone may contribute to the
conclusion that further investigation is warranted. Nicholson, 188 S.W.3d at 661. When
Sergeant Chambers began his search of Defendant‟s person, Defendant failed to follow
Sergeant Chambers‟ requests that he keep his arms raised while Sergeant Chambers
conducted the search. Defendant‟s suspicious movements and behavior caused Sergeant
Chambers‟ to suspect that Defendant might have a weapon. Defendant reached towards
his crotch area several times during the search. Based on the totality of the
circumstances, Sergeant Chambers had reasonable suspicion to believe that Defendant
possessed a weapon and, therefore, was justified in detaining him. See State v. Winn, 974
S.W.2d 700, 704 (Tenn. Crim. App. 1998) (noting that reasonable suspicion to justify a
search may be based upon “an otherwise inexplicable sudden movement toward a pocket
or other place where a weapon could be concealed”). We conclude that the trial court did
not abuse its discretion in denying Defendant‟s motion to suppress. Defendant is not
entitled to relief on this issue.

Sufficiency of the evidence

       Defendant contends that the evidence was insufficient to support his convictions.
Specifically, Defendant challenges the sufficiency of the evidence to support the jury‟s
conclusion that the Oxycodone and Alprazolam in his possession were for the purpose of
resale. Defendant asserts that the “evidence presented at trial was that [Defendant] was
in possession of his own, legitimately prescribed controlled substances and that he had
been the victim of a robbery.”

                                             9
        We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011). The jury as the trier of fact must evaluate the credibility of the
witnesses, determine the weight given to witnesses‟ testimony, and reconcile all conflicts
in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v.
State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the
weight to be given to circumstantial evidence and the inferences to be drawn from this
evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d
at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

       When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. State
v. Bland, 958 S.W.2d 651, 659 (Tenn.1997). Questions concerning the credibility of the
witnesses, the weight and value of the evidence, as well as all factual issues raised by the
evidence are resolved by the trier of fact. Id. Significantly, this court must afford the
State the strongest legitimate view of the evidence contained in the record as well as all
reasonable and legitimate inferences which may be drawn from the evidence. State v.
Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

       Tennessee Code Annotated section 39-17-417(a)(4) provides that it is an offense
to knowingly possess a controlled substance with the intent to sell or deliver the
controlled substance. Generally, a person “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.” T.C.A. § 39-11-302(b). Oxycodone is a
Schedule II controlled substance. T.C.A. § 39-17-408(b)(1)(M). The possession of
Oxycodone for resale is a Class C felony. T.C.A. § 39-17-417(c)(2)(A). Alprazolam is a
Schedule IV controlled substance. T.C.A. § 39-17-412(c)(1). The possession of
Alprazolam for resale is a Class D felony. T.C.A. § 39-17-417(e)(2). A jury may
consider the amount of controlled substances possessed and the other circumstances
surrounding the arrest to determine whether a defendant‟s possession of the controlled
substance was with the intent to sell or deliver it. T.C.A. § 39-17-419.

       Viewing the evidence in a light most favorable to the State, Defendant had in his
possession 120 Oxycodone pills separated into smaller bags containing 20 pills each, and
he also possessed 19 Alprazolam pills. Defendant also had in his possession a plastic bag
                                             10
containing smaller Ziploc bags and rubber bands. Defendant did not have in his
possession a pill bottle or any documentation showing that the pills were prescribed to
him or for his personal use. Detective Lane testified that based on his experience, the
packaging of the pills in small bags indicated that they were for resale.

        Defendant presented as evidence pharmacy records showing that he had
prescriptions for Oxycodone and Alprazolam filled prior to his arrest. Defendant fails to
cite in his brief the “valid prescription” exception in Tennessee Code Annotated section
39-17-418(a), which is applicable “when the prescription is issued by a licensed
practitioner, acting in good faith and in accord with accepted medical standards and when
the person obtaining the prescription is also acting in good faith and is free from fraud,
deceit or misrepresentation.” State v. Sanderson, 550 S.W.2d 236, 239 (Tenn. 1977).
Defendant made no such showing at trial. Although Defendant presented evidence of
pharmacy records showing that he filled prescriptions for Oxycodone and Alprazolam
prior to his arrest, he presented no other medical records or testimony sufficient to invoke
the statutory exception. The State presented the testimony of Detective Lane that the
packaging of the tablets and the materials used indicated that the pills were intended for
resale. The jury was free to weigh the evidence and resolve this question of fact in favor
of the State based on the circumstantial evidence.

       We conclude that the evidence supports the jury‟s conclusion that Defendant
intended to sell Oxycodone and Alprazolam based upon the packaging and quantity of
the drugs. Defendant is not entitled to relief on this issue.

Jury instruction

       Defendant contends that the trial court erred by instructing the jury that it could
infer Defendant‟s intent from the amount of controlled substance possessed and the other
circumstances surrounding Defendant‟s arrest.

       “It is well-settled that a defendant has a constitutional right to a complete and
correct charge of the law, so that each issue of fact raised by the evidence will be
submitted to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390
(Tenn. 2011). In resolving the issue, this court “must review the entire charge and only
invalidate if it, when read as a whole, it fails to fairly submit the legal issues or misleads
the jury as to the applicable law.” State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim.
App. 1994).

      Defendant argues that the inference based on the amount of a controlled substance
should not apply to prescription medication. Defendant asserts that the jury instruction
was misleading to the jury “because the facts of this case, as stipulated by the state,
                                             11
w[ere] that [Defendant] had a valid prescription for the controlled substances in question
that would have included the amounts in [Defendant]‟s possession.”

       Defendant cites no case law to support his position that the inference should not
apply to prescription medication and we are aware of none. It is well established that a
jury may infer a defendant‟s intent to sell solely from the quantity of drugs discovered.
See State v. Robert Pruitt, No. W2010-02269-CCA-R3-CD, 2013 WL 865330, at *3
(Tenn. Crim. App. March 6, 2013). The statute expressly provides: “It may be inferred
from the amount of a controlled substance or substances possessed by an offender, along
with other relevant facts surrounding the arrest, that the controlled substance or
substances were possessed with the purpose of selling or otherwise dispensing.” T.C.A.
§ 39-17-419. There is no distinction made in the statute for prescription medication. The
jury was free to draw such an inference. Defendant is not entitled to relief on this issue.

Sentencing

       Defendant contends that the trial court erred by denying any sentencing
alternative, and Defendant challenges the length of his sentence. Specifically, Defendant
asserts that the trial court should have afforded more weight to his HIV/AIDS diagnosis.

       Our standard of review of the trial court‟s sentencing determinations in this case is
whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to „place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

       “[T]he abuse of discretion standard, accompanied by a presumption of
reasonableness, applies to . . . questions related to probation or any other alternative
sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). In determining
whether to grant or deny probation, a trial court should consider the circumstances of the
offense, the defendant‟s criminal record, the defendant‟s social history and present
condition, the need for deterrence, and the best interest of the defendant and the public.
                                             12
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). “[T]he burden of establishing
suitability for probation rests with the defendant.” T.C.A. § 40-35-303(b). “This burden
includes demonstrating that probation will „subserve the ends of justice and the best
interest of both the public and the defendant.‟” State v. Carter, 254 S.W.3d 335, 346
(Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d 354, 357 (Tenn. Crim. App.
1997)). A trial judge must consider the following factors before imposing a sentence of
incarceration:

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

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

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

T.C.A. § 40-35-103(1). Additionally, the sentence imposed should be the least severe
measure necessary to achieve its purpose, and the defendant‟s potential for rehabilitation,
or lack thereof, should be considered when determining whether to grant alternative
sentencing. T.C.A. 40-35-103(4) and (5). Trial judges are encouraged to use alternative
sentencing when appropriate. T.C.A. § 40-35-103(6).

        In this case, the trial court noted Defendant‟s eligibility for probation. The court
stated that it denied probation based on Defendant‟s prior criminal history and found that
Defendant had prior convictions in addition to those necessary to establish his range. The
trial court also considered Defendant‟s serious medical condition and his drug
dependency, but the trial court also noted that Defendant‟s bond in this case had been
forfeited when he absconded from the jurisdiction.

        The record shows that the trial court considered the relevant sentencing
considerations, and Defendant has not established that the trial court abused its
discretion in denying alternative sentencing or “otherwise overcome the presumption of
reasonableness afforded sentences [that] reflect a proper application of the purposes and
principles of our statutory scheme.” See Caudle, 388 S.W.3d at 280. Defendant is not
entitled to relief.




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                              CONCLUSION

For the aforementioned reasons, the judgment of the trial court is affirmed.


                            ____________________________________________
                            THOMAS T. WOODALL, PRESIDING JUDGE




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