        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs At Knoxville December 13, 2011

                   STATE OF TENNESSEE v. ROGER VINES

               Direct Appeal from the Circuit Court for Wayne County
                        No. 14852     Stella Hargrove, Judge


                 No. M2011-01094-CCA-R3-CD - Filed June 27, 2012


The defendant, Roger Vines, was convicted by a Wayne County jury for one count of selling
.5 grams or more of methamphetamine, a Class B felony, and sentenced to a term of ten
year’s incarceration. On appeal, the defendant contends that: (1) the evidence is insufficient
to support the conviction; (2) the ten-year sentence is excessive; and (3) the court erred in
denying probation. Following review of the record, we find no error and affirm the judgment
of conviction and resulting sentence as imposed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JOSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

William M. Harris, Lawrenceburg, Tennessee (on appeal), and W. Andrew Yarbrough,
Waynesboro, Tennessee (at trial), for the appellant, Roger Vines.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Procedural History

     The defendant’s conviction arose from his act of selling methamphetamine to a
confidential informant in a transaction which was monitored by law enforcement. In late
2009, Jason Bunch contacted the Wayne County Sheriff’s Department and offered his
assistance, and, after speaking with him, the officers agreed to use him as an informant. He
agreed to act as an informant and to purchase drugs from various individuals.
      On December 22, 2009, Mr. Bunch, in a non-monitored call, contacted the defendant
and asked him about purchasing some methamphetamine. The defendant informed Mr.
Bunch that he could supply him with an “eight-ball” for $300. Mr. Bunch asked the
defendant if he could deliver the drugs to his area, and the defendant agreed that he would
do so for an additional $100. The two then agreed to meet for the exchange at the
Department of Human Services building.

        After making this call, Mr. Bunch called his law enforcement contacts and met with
Sheriff Rick Wilson and Chief Deputy Gerald Baer at the Catholic Church, located next to
the Department of Human Services. Mr. Bunch was searched upon his arrival for any sort
of contraband. Thereafter, he was provided with $400 of cash which officers had recorded
the serial numbers from and was outfitted with a recording device in a hidden pocket of a
jacket. During this process, Mr. Bunch again called the defendant to check his arrival time
and then began walking to the Department of Human Services. The two officers remained
in the car at the church, which was separated from the Department of Human Services by a
wooded area. While not the view was not perfectly clear, the officers were able to see Mr.
Bunch get into an older model white car, as well as hear the discussion through the recording
device.

        Mr. Bunch approached the defendant’s car in the parking lot and got into the
passenger seat. Initially, the defendant was not able to locate the drugs and was asked by Mr.
Bunch, “You haven’t lost it, have you?” The defendant eventually located the
methamphetamine in his pocket and gave it to Mr. Bunch, who then gave the defendant the
$400 in marked/recorded cash. Afterwards, the defendant informed Mr. Bunch that he also
had some Xanax for sale, but Mr. Bunch informed him that he did not have any more money.
At this point, the defendant indicated that he wanted to find a place to use the drugs and
asked Mr. Bunch if the Department of Human Services was a “hot spot,” meaning was it a
suitable place to smoke the drugs. Mr. Bunch, not wanting to actually ingest the drugs he had
purchased, informed the defendant that there were too many people there for it to be safe.
After asking the defendant if the drugs did in fact weigh out as an “eight ball” and receiving
an affirmative reply, Mr. Bunch exited the vehicle and went into the Department of Human
Services to the restroom. The defendant then left in his vehicle.

        After waiting in the restroom for a few moments, Mr. Bunch exited and began looking
for the officers who were supposed to be waiting for him. However, he could not locate the
officers and became nervous, which can be heard on the audio tape. Mr. Bunch later learned
that the officers, aware that the defendant was leaving the parking lot, had followed him in
order to get the license plate number of the car, which had not been visible from the position
in the church lot, as it was approximately sixty yards away and the view was obstructed by
trees. Although the officers lost sight of the older model white car for approximately thirty

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seconds, they quickly spotted it and approached the vehicle, getting the license plate number
on video. That plate number was registered to the defendant. The officers did not determine
who was driving the car. Nor did they attempt to stop the driver because to do so would
jeopardize later transactions with their confidential informant. Approximately six minutes
after leaving, the officers returned to the Department of Human Services and met with Mr.
Bunch, who gave them what was later determined to be approximately .7 grams of
methamphetamine. Mr. Bunch was again searched for contraband, and nothing was
discovered.

       Based upon these actions, the defendant was indicted by a Wayne County grand jury
for one count of selling.5 grams or more of methamphetamine. After a jury trial, he was
convicted as charged. At the subsequent sentencing hearing, the State introduced the
testimony of Amber Poole, a probation officer, who had prepared the pre-sentence report.
According to Ms. Poole, during her interview with the defendant he informed her that “I feel
like two years probation is an appropriate sentence for me. I feel like I need to go to drug
rehab.” The defendant acknowledged a prior felony conviction for passing counterfeit
money, and Ms. Poole also discovered a 1998 conviction for driving under the influence.
The defendant also told Ms. Poole that he had used cocaine and methamphetamine daily as
long as he was able to obtain it. He also acknowledged that he had been unemployed since
January of 2009, after having worked at the same place since 1995.

       The State also called Sheriff Wilson, who stated that, during his tenure as sheriff, the
usage of methamphetamine had increased. He testified that a new method of producing the
drug had led to an even greater increase. He indicated that he believed it to be the single
most dangerous drug in the county and that his department had made a concerted effort to
stop the dealers. Sheriff Wilson noted that users who took methamphetamine often became
violent. He also testified that usage of the drug led to an increase in other crimes, specifically
theft and shoplifting. Sheriff Wilson further testified that the general public in Wayne
County felt like the punishment for selling or producing methamphetamine was “just a slap
on the wrist.” He finished by noting that he believed there was a definite need for deterrence
and that the defendant’s sentence could in fact act as a deterrent to other dealers.

        After hearing all the evidence presented, the trial court sentenced the defendant to ten
years in the Department of Correction. A timely motion for new trial was filed with the court
and, after consideration, it was denied by the trial court. The defendant thereafter filed a
timely notice of appeal.

                                            Analysis

       On appeal, the defendant has challenged both the sufficiency of the convicting

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evidence and his ten-year sentence of incarceration. With regard to the sentence, the
defendant contends that the sentence is excessive in length and that the court erred in denying
probation.

I. Sufficiency of the Evidence

       First, the defendant contends that the evidence supporting his drug conviction is
insufficient. When an accused challenges the sufficiency of the convicting evidence, the
standard of review is “whether, after reviewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original); State v. Franklin, 308 S.W.3d 799, 825 (Tenn. 2010); see also Tenn. R. App. P.
13(e). “[T]he State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.” State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000); see also State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).
Questions involving the credibility of 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, and an
appellate court does not reweigh or re-evaluate the evidence. State v. Evans, 108 S.W.3d
231, 236 (Tenn. 2003).

        A jury verdict approved by the trial court accredits the State’s witnesses and resolves
all conflicts in the evidence in favor of the State. Id. “Because a verdict of guilt removes the
presumption of innocence and imposes a presumption of guilt, the burden shifts to the
defendant upon conviction to show why the evidence is insufficient to support the verdict.”
State v. Thacker, 164 S.W.3d 208, 221 (Tenn. 2005). These rules are applicable to findings
of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both.
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

       As noted, the defendant was convicted of selling.5 grams or more of
methamphetamine. Our statutes provide that it is an offense to knowingly sell a controlled
substance. T.C.A. § 39-17-417(a)(3) (2010). The Code further notes that it is a Class B
felony to sell.5 grams or more of methamphetamine. Id. at (c)(1).

       In support of his sufficiency argument, the defendant relies upon four points, which
he asserts undermine the validity of the conviction: (1) that the State failed to introduce cell
phone records to substantiate that the calls from Mr. Bunch were to the defendant’s cell
phone; (2) that the defendant was not visible on the videotape and law enforcement officers
could not conclusively identify him as the individual in the car; (3) that there was no
reference made on the recording to an actual transaction taking place, i.e. here’s the drugs
I’m selling you for $300; and (4) that none of the marked/recorded money was found in the

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defendant’s possession. While we agree that each of the facts relied upon by the defendant
are true, we cannot conclude that this leads to a reversal of the conviction. None of points
argued by the defendant are necessary to support this conviction in light of the other evidence
presented.

       Viewed in the light most favorable to the State, the evidence is sufficient to support
the conviction for sale of .5 grams or more of methamphetamine. Mr. Bunch testified that
he called the defendant and set up a meeting to purchase drugs, that the defendant arrived at
the pre-arranged spot, and that the defendant sold him methamphetamine. Based upon the
verdict rendered, the jury chose to accredit Mr. Bunch’s testimony, a finding which we will
not reweigh or reevaluate on appeal. See Evans, 108 S.W.3d at 236. Moreover, Mr. Bunch
recited the number which he stated he called to reach the defendant, and that number was the
same one supplied by the defendant himself during the booking process as his cell phone
number.

        Additionally, officers were present during the transaction, having previously searched
Mr. Bunch for contraband, and the audio recording, although not specifically mentioning a
“sale,” is consistent with Mr. Bunch’s testimony. That the officers were not able to obtain
an actual visual identification of the defendant in the car is not necessary to the case. Mr.
Bunch provided that positive identification. Moreover, the two officers immediately
followed the car leaving the scene of the transaction and determined that it was registered
to the defendant. When officers returned to the scene, Mr. Bunch was in possession of more
than .5 grams of methamphetamine but no money. Based upon this evidence, it is clear that
the defendant has failed to establish that insufficient evidence was presented; rather, it is
clear that “any reasonable trier of rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”

II. Sentencing

       Next, the defendant contends that the trial court erred in imposing a ten-year sentence
because it is not the least severe measure necessary to protect the public from the defendant’s
future criminal conduct and bears no relationship to the defendant’s potential for
rehabilitation. Further, he contends that the court erred in denying his request for an
alternative sentence, specifically probation.

       The burden of demonstrating that a sentence is erroneous is placed upon the appealing
party. State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). This court’s review of a trial
court’s sentence is de novo with a presumption that the trial court’s determinations are
correct. Id. This presumption “‘is conditioned upon the affirmative showing in the record
that the trial court considered the sentencing principles and all relevant facts and

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circumstances.’” Id. at 344-45 (quoting State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)).
“If, however, the trial court applies inappropriate mitigating and/or enhancement factors or
otherwise fails to follow the Sentencing Act, the presumption of correctness fails” and “‘our
review is simply de novo.’” Id. at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn.
2004)).

       a. Length of Sentence

       Pursuant to the 2005 amendments, our Sentencing Act has abandoned the statutory
minimum sentence and renders enhancement and mitigating factors advisory only. T.C.A.
§§ 40-35-114, -210(c). Thus, the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is “‘consistent with the purposes and
principles of the Sentencing Act.’” Carter, 254 S.W.3d. at 343 (quoting T.C.A. § 40-35-
210(d)). Following the 2005 amendment to our Sentencing Act, the trial court is required
to consider, but not be bound by, certain advisory guidelines to arrive at an appropriate
sentence, which is then subject to appellate review. T.C.A. § 40-35-210(c). In sentencing
a defendant, the trial court is required to consider the following:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence report;

       (3) The principles of sentencing and arguments as to sentencing alternatives;

       (4) The nature and characteristics of the criminal conduct involved;

       (5) Evidence and information offered by the parties on the mitigating and
       enhancement factors set out in [sections] 40-35-113 and 40-35-114;

       6) Any statistical information provided by the Administrative Office of the
       Courts as to the sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

T.C.A. § 40-35-210(b).

       A sentence is proper if the record reflects that the trial court considered those
enhancement and mitigating factors it deemed applicable, and the trial court, in determining
the specific sentence, considered the nature and characteristics of the crime and the character

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and background of the defendant, and imposed a sentence which is not consistent with the
principles and purposes of sentencing. T.C.A. § 40-35-210(b), (d). The trial court’s
weighing of the various mitigating and enhancement factors has been left to the trial court’s
sound discretion. Carter, 254 S.W.3d at 345. “Since the Sentencing Act has been revised
to render these factors merely advisory, that discretion has been broadened.” Id. If the trial
court recognizes and enunciates several applicable enhancement factors, it does not abuse
its discretion if it does not increase the sentence beyond the minimum on the basis of those
factors. Similarly, if the trial court recognizes and enunciates several applicable mitigating
factors, it does not abuse its discretion if it does not reduce the sentence from the maximum
on the basis of those factors. Therefore, appellate courts are left with a very narrow set of
circumstances in which they might find that a trial court has abused its discretion in setting
the length of a defendant’s sentence. Id. at 345-46.

       As noted, the defendant was convicted as a Range I offender of a Class B felony.
Therefore, his applicable sentencing range was eight to twelve years. See T.C.A. §§ 39-14-
105(5); 39-14-118(b); 39-14-118(c)(1); 40-35-112(a)(2). The trial court sentenced the
defendant to ten years’ incarceration at 30%, which falls within the applicable sentencing
range. In reaching this determination, the trial court relied upon the presence of a single
enhancement factor, that being prior criminal history and behavior. See T.C.A. § 40-35-
114(1). The court based application of this factor on the defendant’s prior convictions for
DUI and felony counterfeiting, as well as his admitted criminal conduct related to his
ingestion of illegal drugs. The court found no applicable mitigating factors.

       On appeal, the defendant asserts that the trial court erred by failing to apply his argued
mitigating factor that his criminal conduct neither caused nor threatened serious bodily
injury. See T.C.A. § 40-35-113(1). The record indicates that the trial court did consider the
defendant’s argument at the hearing with regard to this factor but found that it was not
appropriate. The defendant contends that the record is devoid of any evidence that
establishes that the sale of methamphetamine to Mr. Bunch either caused or threatened
serious bodily injury. He also argues that because he only had one prior felony conviction,
which was over thirty years old, the court should have given minimum weight to the
enhancement factor and “sentenced the [defendant], not at the middle of the range, but rather
more appropriately with the minimum sentencing of said range.” We conclude that both
assertions are misplaced.

       While it is true that in this specific case that there was no threat of serious bodily
injury resulting from the sale, that is true only because the sale was made to a confidential
informant who had no intention of using the substance. However, the defendant was not
aware of that. Evidence was presented at the hearing by Sheriff Wilson to the myriad of
possible dangers caused by methamphetamine, to the individual user, the public, and the

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environment. We see no error in the trial court’s refusal to apply this factor in sentencing the
defendant.

        The defendant’s argument regarding the enhancement factor is essentially that the trial
court abused its discretion in the weight given to the factor. However, as noted, weighing
of the various mitigating and enhancement factors has been left to the trial court’s sound
discretion. See Carter, 254 S.W.3d at 345. While the defendant is correct that his only
felony conviction on record was over thirty years old, his argument ignores the other criminal
conduct relied upon by the trial court in determining the weight to give the enhancement
factor for prior criminal convictions or behavior. The defendant also had convictions for
DUI and failing to carry a driver’s license. Moreover, during the interview with the
defendant for the purpose of preparing the pre-sentence report, he made statements admitting
criminal behavior, i.e. the use of drugs, for an extensive time span. This information can also
be considered in application of this factor. The defendant admitted that he began using
alcohol at the age of nine or ten, drinking two to three times a week until the age of forty-
five. He also acknowledged that he had committed crimes while drunk. The defendant
acknowledged that he had began using cocaine at the age of thirty-five, had continued to do
so for ten years, and had “used as much as [he] could get.” He related that he began using
methamphetamine at the age of forty-five, using it daily “as long as [he] could get it.” Based
upon this information, we cannot conclude that the defendant put forth any argument which
would establish that the trial court abused its discretion in setting the length of the sentence.
The defendant is entitled to no relief.

       b. Alternative Sentencing

        Next, the defendant contends that the trial court erred in denying him an alternative
sentence, specifically “either full or partial probation.” Pursuant to the 2005 sentencing
amendment, a defendant is no longer presumed to be a favorable candidate for alternative
sentencing. Carter, 254 S.W.3d at 347. Instead, our statute now reads that a defendant who
is an especially mitigated or standard offender convicted of a Class C, D, or E felony “should
be considered as a favorable candidate for alternative sentencing options in the absence of
evidence to the contrary.” Id. at 343 (citing T.C.A. § 40-35-102(6)). Evidence to the
contrary may be established by showing that: (1) confinement is needed to protect society by
restraining a defendant who has a long history of criminal conduct; (2) confinement is needed
to avoid depreciating the seriousness of the offense or confinement is particularly suited to
provide an effective deterrence to people likely to commit similar offenses; or (3) less
restrictive measures than confinement have frequently or recently been applied
unsuccessfully to the defendant. Ashby, 823 S.W.2d at 169 (citing T.C.A. § 40-35-
103(1)(A)-(C)). The trial court may also consider the mitigating and enhancing factors set
forth in Tennessee Code Annotated sections 40-35-113 and -114. T.C.A. § 40-35-210(b)(5);

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State v. Boston, 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). In addition, a trial court
should consider a defendant’s potential or lack of potential for rehabilitation when
determining if an alternative sentence would be appropriate. T.C.A. § 40-35-103(5); Boston,
938 S.W.2d at 438.

        In this case, while the defendant remains eligible for probation because his sentence
was ten years or less and the offense for which he was convicted is not specifically excluded
by statute, he does not fall within the parameters of the statute in question, because he was
convicted of a Class B felony. Regardless, the defendant has failed to establish his
“suitability for full probation.” See State v. Mounger, 7 S.W.3d 70, 78 (Tenn. Crim. App.
1999); T.C.A. § 40-35-303(b). A defendant seeking full probation bears the burden of
showing that probation will “subserve the ends of justice and the best interest of both the
public and the defendant.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990)
(quoting Hooper v. State, 201 Tenn. 156, 297 S.W.2d 78, 81 (Tenn. 1956), overruled on
other ground by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000)). Additional factors which
should be considered are: (1) the nature and characteristics of the crime; (2) the defendant’s
potential for rehabilitation; (3) whether the sentence would unduly depreciate the seriousness
of the offense; and (4) whether an alternative sentence would provide an effective deterrent.
State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995).

         The defendant argues that he “clearly proved” his suitability for probation, asserting
that he showed gainful employment through January 2009, had a good relationship with
family, and was financially responsible for himself. He also relies upon his sparse criminal
history and that there was no showing of any prior probation violations. However, the trial
court concluded that the defendant had failed to carry his burden, and we find no error in that
determination. As pointed out by the trial court, while the defendant’s history of criminal
convictions was not great, his criminal behavior was. That the defendant was not caught and
punished for that behavior in no way lessens the weight which the trial court could afford it
in its determination, as it was behavior admitted by the defendant. Moreover, the defendant’s
argument ignores the fact that the trial court found that probation would depreciate the
seriousness of the offense and that confinement was necessary to provide an effective
deterrent, both of which are valid considerations. In fact, the court noted that, in its opinion,
deterrence alone would justify the denial of probation.

       The court is correct that deterrence alone can provide a valid basis for denial of
probation, but only when the evidence “would enable a reasonable person to conclude that
(1) deterrence is needed in the community, jurisdiction, or state; and (2) the defendant’s
incarceration may rationally serve as a deterrent to others similarly situated and likely to
commit similar crimes.” See Hooper, 29 S.W.3d at 13. Here the State called Sheriff Wilson,
who testified that methamphetamine was an increasing problem in his jurisdiction. Sheriff

                                               -9-
Wilson noted that he found methamphetamine to be the most dangerous drug in his
jurisdiction and that it led to an increase in other crimes as well amongst its users. He
specifically noted that the belief among the people of Wayne County was that the punishment
for methamphetamine related offenses was “just a slap on the wrist” and that if a substantial
sentence was given and published in the local paper, it would serve as a deterrent for other
individuals.

       The defendant has again failed to carry his burden. On the record before us, we can
reach no conclusion other than that the trial court did not err in denying the defendant a
probationary sentence.

                                     CONCLUSION

       Based upon the foregoing, the judgment of conviction and sentence are affirmed




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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