              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                         FILED
                                  AT KNOXVILLE
                                                                        October 18, 1999

                              JUNE 1999 SESSION                        Cecil Crowson, Jr.
                                                                      Appellate Court Clerk




STATE OF TENNESSEE,                 *    C.C.A. # 03C01-9805-CR-00178

            Appellee,               *    Greene County

VS.                                 *    Honorable James E. Beckner, Judge

KENYETTA FIELDS,                    *    (Facilitation of a Felony)

            Appellant.              *



FOR THE APPELLANT:                       FOR THE APPELLEE:

GREG W. EICHELMAN (on appeal)            PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter
1609 College Park Drive, Box 11
Morristown, TN 37813-1618                CLINTON J. MORGAN
                                         Assistant Attorney General
FREDICK M. LANCE (at trial)              425 Fifth Avenue North
804 Market Street                        Nashville, TN 37243-0493
Johnson City, TN 37604
                                         C. BERKELEY BELL, JR.
                                         District Attorney General

                                         VICTOR VAUGHN
                                         Assistant District Attorney General
                                         109 South Main Street
                                         Greeneville, TN 37743




OPINION FILED: _______________



AFFIRMED IN PART, MODIFIED, AND REMANDED




JOHN EVERETT WILLIAMS,
Judge
                                              OPINION

         The defendant, Kenyetta Fields, appeals his conviction and sentence for

facilitation of the sale of cocaine in an amount greater than .5 grams. The

defendant argues that (1) the evidence at trial was insufficient to support the

jury's verdict, (2) the sentence imposed by the trial court is excessive, and (3) the

trial court erred in failing to grant an alternative sentence. We AFFIRM the

defendant’s conviction and MODIFY the sentence imposed by the trial court.



                                           BACKGROUND

         The defendant was arrested pursuant to an undercover operation in which

TBI Agent Mike Hannon purchased 1.5 grams of cocaine from a passenger of a

vehicle operated by the defendant. At the outset of the offense, the defendant

and his passenger were seated in the defendant’s 1 parked vehicle. Hannon and

an informant parked behind them to attempt to purchase cocaine. The

defendant’s passenger, James Henry Davis, got out of the defendant’s vehicle,

approached Hannon, and asked what they wanted. Hannon responded that he

wanted $250 worth of crack cocaine. Davis then went back to the defendant’s

car and got in the front passenger seat. Hannon testified that he observed what

he thought was an exchange between Davis and the defendant. Although he did

not see anything change hands, Hannon testified that the defendant and Davis

engaged in conversation and physical interaction. A few moments later, Davis

got out of the defendant’s car, returned to Hannon, and delivered a substance

that was later identified as 1.5 grams of crack cocaine. Hannon paid Davis $260,

and Davis took the money back to the defendant’s car. Davis and the defendant

then engaged in a second transaction, after which Davis returned to Hannon with




         1
                   Although the vehicle was reg istered to “S . Fields” rath er than to th e defen dant,
the defendant possessed and was in control of the vehicle during the present offense, and law
enfo rcem ent o ffice rs tes tified th at the y kne w the defe nda nt an d had seen him drivin g the vehic le
in the past. Thus, while we refer to the vehicle as the “defendant’s,” we recognize that he may not
have tec hnically own ed the ve hicle.

                                                    -2-
ten dollars change. The state presented testimony that the sale occurred within

approximately 200 yards of a school.



       Both subjects were subsequently arrested and indicted for the sale of

cocaine in an amount greater than .5 grams. See Tenn. Code Ann. § 39-17-417.

The defendant was tried separately before a jury. At the close of the state’s

proof, the defense moved for a judgment of acquittal. Finding that the evidence

was sufficient to support the indictment, the trial court overruled this motion.

However, the court did find it appropriate to also charge the jury on the lesser

offense of facilitation. See Tenn. Code Ann. § 39-11-403. The jury found the

defendant not guilty on the indicted charge but found him guilty of facilitation and

imposed a fine of $50,000. The trial court then sentenced him to four years and

six months in the Tennessee Department of Correction.



                                     ANALYSIS

       The defendant first submits that the evidence presented at trial was legally

insufficient to support the jury’s verdict. When a defendant challenges the

sufficiency of the evidence, this Court must determine whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of a crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d

63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee is entitled to the

strongest legitimate view of the evidence and all reasonable inferences that may

be drawn therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



       The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state


                                         -3-
accredits the testimony of the state’s witnesses and resolves all conflicts in favor

of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Moreover, a guilty verdict removes the presumption of innocence enjoyed by

defendants at trial and replaces it with a presumption of guilt. See State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the

sufficiency of the evidence carries the burden of illustrating to this Court why the

evidence is insufficient to support the verdict. See State v. Freeman, 943

S.W.2d 25, 29 (Tenn. Crim. App. 1996).



       Section 39-11-403 of Tennessee Code Annotated provides, “A person is

criminally responsible for the facilitation of a felony if, knowing that another

intends to commit a specific felony, but without the intent required for criminal

responsibility under § 39-11-402(2), the person knowingly furnishes substantial

assistance in the commission of the felony.” Although more might be inferred, it

is clear that the defendant provided the car that he and Davis used both as

transportation to and from the drug sale and as an office of sort from which to

conduct the transaction. This evidence, along with Hannon’s account of the

interaction between Davis and the defendant at each stage of the sale, was

sufficient for a reasonable trier of fact to infer that the defendant knew of Davis’

intent. The evidence also supports the jury’s conclusion that the defendant

knowingly furnished substantial assistance to Davis in the commission of the

sale. Thus, we find the evidence sufficient to support the jury’s verdict.



                                   SENTENCING

       The defendant next argues that his sentence is excessive and that the

trial court erred in failing to impose an alternative sentence. When an accused

challenges the length or manner of service of a sentence, it is the duty of this

Court to conduct a de novo review on the record “with a presumption that the

determinations made by the court from which the appeal is taken are correct.”


                                          -4-
Tenn. Code Ann. § 40-35-401(d). This presumption “is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The appellant carries the burden of showing that his

sentence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm’n

cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).



                                Length of Sentence

       The defendant is a Range I offender, and facilitation of the sale of cocaine

in an amount greater than .5 grams is a Class C felony. See Tenn. Code Ann.

§§ 39-11-403(b); 39-17-417(c)(1). Thus, the defendant is subject to a

sentencing range of three to six years. See Tenn. Code Ann. § 40-35-112. The

presumptive sentence for a Class C felony is the minimum in the range, absent

enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c).



       The trial court found applicable as enhancement factors that the

defendant has a history of criminal behavior in addition to that necessary to

establish the appropriate range, see Tenn. Code Ann. § 40-35-114(1), and that

the offense occurred within 200 yards of a school, see generally Tenn. Code

Ann. § 39-17-432 (establishing the area within 1000 feet of school property as a

Drug-Free School Zone and providing enhanced penalties for certain offenses

committed within such area). Based on these findings, and finding no mitigating

factors, the court imposed a sentence of four and one-half years.



       The defendant challenges both enhancements applied by the trial court as

well as the trial court’s rejection of two proposed mitigating factors: that “[t]he

defendant's criminal conduct neither caused nor threatened serious bodily injury”

and “[t]he defendant played a minor role in the commission of the offense.”

Tenn. Code Ann. § 40-35-113(1), (4).


                                          -5-
        As to enhancement factor (1), the defendant’s presentence report reflects

numerous misdemeanor convictions and his admission that he uses cocaine.

The defendant does not contest the nature or extent of this criminal history.

However, he argues that because all of his prior convictions were

misdemeanors, factor (1) is inapplicable. This argument is without merit. The

language of the enhancement statute does not limit a sentencing court to the

consideration of felony convictions--or even convictions. See Tenn. Code Ann. §

40-35-114(1). Enhancement factor (1) may be applied solely on the basis of

misdemeanor criminal history. See State v. Millbrooks, 819 S.W.2d 441, 446-47

(Tenn. Crim. App. 1991). Thus, the trial court’s application of enhancement

factor (1) was proper.



        The defendant next argues that the trial court erred in enhancing his

sentence based on its finding that the offense occurred within 200 yards of a

school. We agree. The Drug-Free School Zone Act (“the Act”) establishes the

area within 1000 feet of a school property as a Drug-Free School Zone and

provides for enhanced punishment--through increased offense classification and

minimum sentencing--for certain offenses committed within such an area. See

Tenn. Code Ann. § 39-17-432. Although the state’s proof was uncontested that

the defendant committed his offense within 200 yards of a school, the state did

not indict the defendant under the Act. Instead, the state cited violation of the

Act in its notice to seek enhanced punishment. At the defendant’s sentencing

hearing, the trial court correctly concluded that, because the state had not

properly indicted the case, the court could not invoke the Act to increase the

defendant’s offense classification.2 Nevertheless, the trial court found that the

defendant’s violation of the Act warranted “some consideration” and relied upon

it to enhance the defendant’s sentence. Because “[t]he factors contained in §§

        2
         We note that applying the Act would have been problematic in any event because as
the defendant was not convicted, as required by the Act, of “a violation of § 39-17-417 or
conspiracy to violate such section.” Rather, he was convicted of facilitation of a violation of 39-17-
417.

                                                 -6-
40-35-113 and -114 are the exclusive factors which may be considered in setting

the length of a sentence within a given range,” State v. Dykes, 803 S.W.2d 250,

258 (Tenn. Crim. App. 1990), we cannot affirm this enhancement.



       The defendant next argues that the trial court erred in rejecting his

assertions that he neither caused nor threatened serious bodily injury and that he

played only a minor role in the commission of the offense. See Tenn. Code Ann.

§ 40-35-113(1), (4). We find neither factor applicable.



       The threat of serious bodily injury is inherent in cocaine use. Thus, this

Court has held that mitigating factor (1) should not be applied when the

defendant is convicted of an offense involving cocaine. See State v. Vanderford,

980 S.W.2d 390, 407 (Tenn. Crim. App. 1997); State v. Keel, 882 S.W.2d 410,

422 (Tenn. Crim. App. 1994).



       Factor (4) is also inapplicable. As noted above, the evidence is sufficient

to support the jury’s verdict that the defendant provided “substantial assistance in

the commission of the felony.” Tenn. Code Ann. § 39-11-403 (emphasis added).

This conclusion contradicts the defendant’s assertion that he played a minor role

in the facilitation.



       In summary, we conclude that the trial court properly applied

enhancement factor (1) and properly rejected the mitigating factors proposed by

the defendant. We cannot, however, affirm the trial court’s further enhancing the

defendant’s sentence on the bases of considerations not included among the

factors provided by Tennessee Code Annotated § 40-35-114. Because the trial

court did not indicate the weight it accorded each enhancement, we undertake

that effort. Unlike the issue of applicability of the enhancement, here the extent

and nature of the defendant’s criminal history are relevant. Although lengthy, the


                                        -7-
defendant’s criminal history is relatively minor. We conclude that this history

warrants a one-year enhancement. Therefore, we modify the defendant’s

sentence to four years.



                                     Alternative Sentencing

        The defendant next argues that the trial court erred in denying an

alternative sentence. Because he is convicted of a Class C felony, the appellant

is presumed eligible for alternative sentencing. See Tenn. Code Ann. § 40-35-

102. Nevertheless, the trial court found that confinement was necessary to avoid

depreciating the seriousness of the defendant’s offense and to provide a

deterrence to others likely to commit similar offenses. See Tenn. Code Ann. §

40-35-103(1)(B). The defendant attacks these findings, arguing that neither is

supported by the record.



        The need for deterrence cannot be conclusory only, but must be

supported by evidence in record indicating that the sentence imposed would

have a deterrent effect within the jurisdiction. See Ashby, 823 S.W.2d at 170;

State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). In the present

case, the trial court noted, sua sponte, “We have a terrible problem of crack

cocaine here in Greene County.” This finding, however, is not supported by any

evidence in the record. Even without such evidence, the state argues that drug

offenses are “deterrable per se.” Although other panels of this Court have held

precisely that, see, e.g., Dykes, 803 S.W.2d at 260, such holdings cannot be

reconciled with our Supreme Court’s holding in Ashby; which, we note, was itself

a drug case. Therefore, because the record contains no supporting evidence,

we conclude that confinement is not warranted in this case on the basis of a

need for deterrence.3


        3
           W e note tha t the legislature has ex pressly fou nd deter rence n ecess ary with rega rd to
certain drug offenses com mitted within 1000 feet of a school: “The enha nced and m andatory
minimum sentence required by this section for drug offenses occurring in a Drug-Free School

                                                   -8-
         Nevertheless, we affirm the trial court’s finding that confinement is

necessary to avoid depreciating the seriousness of the defendant’s offense. For

this factor to warrant a sentence of confinement, “‘the circumstances of the

offense as committed must be especially violent, horrifying, shocking,

reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’

and the nature of the offense must outweigh all factors favoring a sentence other

than confinement.” Bingham, 910 S.W.2d at 455 (quoting State v. Hartley, 818

S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).



         The circumstances of the defendant’s offense are, for the most part,

unremarkable. However, as noted above, the evidence showed that the

defendant committed his offense within 200 yards of a school. With its passage

of the Drug-Free School Zone Act, the Tennessee legislature emphatically

expressed the seriousness of this circumstance in drug-related offenses. Our

review of that Act persuades us that the legislature considered drug offenses

committed within a school zone to be especially reprehensible and offensive.

We agree with the trial court that confinement is warranted.



                                                    FINE

         Finally, although not raised by the parties, we note that the defendant’s

fine exceeds the statutory limit. The jury imposed, and the trial court approved,

a fine of $50,000. The maximum allowable fine for a Class C felony is $10,000.

See Tenn. Code Ann. § 40-35-111(b)(3). Article VI, Section 14 of the

Tennessee Constitution provides that every citizen has the right to have a jury of

his peers assess any fine in excess of fifty dollars. Accordingly, this Court may

not reduce the defendant's fine to correct this error. See State v. Martin, 940




Zone a re nece ssary to se rve as a d eterrent to such u nacce ptable co nduct.” T enn. Co de Ann . §
39-17-432(a). Although this legislative expression would arguably support a conclusion that
dete rren ce is n ece ssa ry in the pres ent c ase , given our re solu tion b elow we ne ed no t deve lop th is
analysis.

                                                      -9-
S.W.2d at 567, 570-71 (Tenn. 1997). However, it is permissible to remand the

case for a determination on the issue of the fine alone, so that the defendant

may have a jury assess a fine within the statutory limits. See id. It is not

constitutionally required that "the same jury fix the fine that finds the defendant

guilty." Id. at 570. Therefore, we remand this case to the trial court where a new

jury shall be empaneled to fix an appropriate fine.



                                  CONCLUSION

       For the forgoing reasons, the defendant’s conviction is AFFIRMED; his

sentence is MODIFIED to four years in the Tennessee Department of Correction,

and this case is REMANDED for a jury to fix the amount of the defendant’s fine.




                                               _____________________________
                                               JOHN EVERETT W ILLIAMS, Judge




CONCUR:




____________________________
JOHN H. PEAY, Judge




_____________________________
DAVID G. HAYES, Judge




                                        -10-
