        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 29, 2010

               STATE OF TENNESSEE v. HUEDEL SPARKMAN

              Direct Appeal from the Circuit Court for Marshall County
                         No. 17170    Robert Crigler, Judge




               No. M2009-02511-CCA-R3-CD - Filed December 10, 2010


A Marshall County Circuit Court jury convicted the appellant, Huedel Sparkman, of one
count of possession of .5 grams or more of cocaine with the intent to sell and one count of
possession of .5 grams or more of cocaine with the intent to deliver, class B felonies. At
sentencing, the trial court merged the convictions and imposed a sentence of 25 years’
incarceration to be served as a Range III, persistent offender, consecutively to any unserved
sentence. In this appeal as of right, the appellant argues that the evidence is insufficient to
support his convictions and that the trial court imposed an excessive sentence. Following our
review, we affirm the judgments of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Stephanie Barka (at trial) and William J. Harold (at trial and on appeal), Assistant District
Public Defenders, for the appellant, Huedel Sparkman.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Charles Frank Crawford, Jr., District Attorney General; Weakley E.
Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background
       The appellant’s convictions arose from a cooperative investigation conducted by the
17th Judicial District Drug Task Force, the 21st Judicial District Drug Task Force, and the
Maury County Sheriff’s Department Drug Task Force on September 30, 2005.

       Jackie Renee Cannon testified that she was employed as a paid confidential informant
with the 17th Judicial District Drug Task Force (DTF) in September 2005. She stated that
she provided information to the DTF and made controlled purchases for the DTF in exchange
for payment. She said that she usually earned $150 for each transaction in which she
assisted.

       Ms. Cannon testified that she had known the appellant approximately eight years. In
September 2005, the appellant telephoned her and asked her to drive him from his home in
Columbia, Tennessee to Fayetteville, Tennessee. The appellant told Ms. Cannon that he
needed to make some money and that he had some drugs to sell. Ms. Cannon telephoned
Tim Miller, the Assistant Director of the DTF, and set up a “three-way call” with the
appellant in order to confirm their plan. During their conversation, Ms. Cannon and the
appellant made plans for her to pick up the appellant and drive him to Fayetteville.

        Based upon this conversation and Ms. Cannon’s report that the appellant intended to
sell drugs while in Fayetteville, the DTF prepared Ms. Cannon to take part in an interdiction
stop on Interstate 65. Before going to pick up the appellant, the officers searched Ms.
Cannon’s vehicle to confirm the absence of any illegal substances. They also installed both
video and audio recording devices in the vehicle. However, the videotape recorder
malfunctioned, leaving only a poor quality audiotape recording of their activities.

       Ms. Cannon testified that she met the appellant near the square in downtown
Columbia and followed him to his home. Once they arrived at his residence, the appellant
gave Ms. Cannon $10, and she went to a nearby gas station to purchase gas for her car. She
then returned to the appellant’s home, and the two began their journey to Fayetteville. While
traveling south on I-65 toward Fayetteville, an officer pulled over Ms. Cannon because she
was not wearing her seat belt. Ms. Cannon was placed in the officer’s cruiser and consented
to a search of her car. She saw the officer search the appellant, find something in the
appellant’s pocket, and arrest the appellant. She never saw any drugs in the appellant’s
possession.

        Deputy Billy Osterman testified that in September 2005, he worked as a “tech man”
with the Marshall County Sheriff’s Department Drug Task Force. His duties included
installing, maintaining, and monitoring the surveillance equipment in Ms. Cannon’s car. He
admitted that the audio recording was “poor quality” due to the distance from which it was
monitored and the size of the transmitter. He explained that the need for a quality recording

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was mitigated by the fact that the transaction monitored was an interdiction traffic stop and
not a controlled drug purchase.

        Deputy Shane Daugherty testified that he was a criminal interdiction officer with the
21st Judicial District Drug Task Force and that he stopped Ms. Cannon’s car on I-65 as part
of the pre-arranged plan to arrest the appellant. He recalled that the appellant seemed “very
nervous about something” during the stop. Ms. Cannon consented to a search of her car. In
the process of searching Ms. Cannon’s car, Deputy Daugherty asked the appellant to step out
of the car. When the appellant stepped out, Deputy Daugherty noticed a “large bulge in [the
appellant’s] left front pants pocket.” He asked the appellant to remove the items from his
pocket, so the appellant removed a set of keys and some money. Deputy Daugherty said that
there was still something in the appellant’s pocket. He asked the appellant what was in his
pocket and the appellant admitted that it was cocaine. As Deputy Daugherty arrested the
appellant, he removed a bag of cocaine from the appellant’s pocket. He described the
quantity as “a seller’s amount.” There were no pipes or other drug paraphernalia found in
the car.

        Maury County Sheriff’s Department Lieutenant William Dolle testified that he was
working for the Maury County Drug Task Force in September 2005 and that he assisted in
the surveillance of Ms. Cannon and the appellant. His recollection of their journey was
consistent with Ms. Cannon’s testimony. Lieutenant Dolle talked to the appellant at the
arrest scene. The appellant told Lieutenant Dolle that he wanted to assist them in order to
avoid a parole violation. The appellant told the officers several sources for the cocaine and
that he had planned to sell the cocaine in Fayetteville. None of the sources could be
confirmed, so the appellant was taken to jail later that day.

       Assistant Director Tim Miller of the DTF testified that he listened to and recorded the
three-way telephone call during which Ms. Cannon and the appellant planned the appellant’s
journey to Fayetteville. Assistant Director Miller said that he planned the interdiction stop.
His description of the stop was consistent with the testimony of other witnesses. He stated
that Deputy Daugherty recovered over 20 grams of cocaine from the appellant’s pocket.

       Director Timothy Lane of the DTF testified that part of his duties as director included
acting as custodian of evidence. He said that he received the cocaine from Assistant Director
Miller and packaged it for shipment to the Tennessee Bureau of Investigation (TBI) Crime
Lab. He recalled that the cocaine weighed 22.9 grams and said that a normal “user amount”
was approximately .2 grams. He explained that the amount recovered from the appellant
could produce “115 rocks” of crack cocaine. He also said that it was unlikely this amount
was for personal use in light of its quantity and the lack of any drug paraphernalia found on
the appellant or in the car.

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        John Scott, Jr., a forensic chemist with the TBI Crime Lab, testified that his analysis
of the substance recovered from the appellant’s pocket confirmed it to be 22.9 grams of crack
cocaine.

       Based upon this evidence, the jury convicted the appellant as charged in the
indictment. On appeal, the appellant contends that the evidence was insufficient to support
his convictions and that the trial court imposed an excessive sentence.

                                         II. Analysis

                                 Sufficiency of the Evidence

        The appellant argues that the evidence was insufficient to support his convictions
because he did not possess the cocaine with the intent to sell or deliver but only for his
personal use. He also contends that the confidential informant “does not have any
credibility” because she “was motivated by the opportunity to earn money.” The State argues
that the evidence “was more than sufficient” based upon the quantity of the cocaine
possessed by the appellant and the appellant’s confession to the officers that he planned to
sell the cocaine in Fayetteville. We agree with the State.

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       In order to sustain the appellant’s conviction, the State was required to prove that the
appellant knowingly possessed more than .5 grams of cocaine with the intent to sell or
deliver. Tenn. Code Ann. §§ 39-17-417(a)(4), (c)(1) (2003). “The one element present in
almost all criminal offenses which is most often proven by circumstantial evidence is that
relating to the culpable mental state.” State v. Harold Wayne Shaw, No. 01C01-9312-CR-
00439, 1996 WL 611158, at *3 (Tenn. Crim. App. at Nashville, Oct. 24, 1996). Notably,

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Tennessee Code Annotated section 39-17-419 (2003) provides, “It may be inferred from the
amount of a controlled substance ..., along with other relevant facts surrounding the arrest,
that the controlled substance or substances were possessed with the purpose of selling or
otherwise dispensing.”


       The evidence presented in this case showed that the appellant contacted Ms. Cannon
for the purpose of obtaining a ride to Fayetteville in order to make some money selling
cocaine. The jury accredited the testimony of Ms. Cannon, as was their province to do. The
appellant was found in possession of 22.9 grams of cocaine, which officers testified was an
amount comparable to that carried by a dealer and atypical of an amount for personal use. No
other evidence of personal use was recovered on the appellant or in the car. Furthermore, the
appellant admitted to officers that he intended to sell the cocaine in Fayetteville. Even absent
the statutory inference concerning the amount of cocaine possessed by the appellant, the
evidence in this case supports the appellant’s convictions.


                                          Sentencing


       The appellant also argues that the trial court erred in imposing a sentence at the
midpoint of his sentencing range. He contends that he should have been sentenced “closer
to the minimum end of Range III” in consideration of the mitigating and enhancing factors
present in his case as well as the need to “preserve precious Department of Correction[]
resources.” The State argues that the trial court’s imposition of a 25 year sentence was
appropriate in this case, noting that the 2005 amendments to the Sentencing Act afford more
discretion to the trial court’s sentencing decision as long as the sentence imposed is
consistent with the purposes and principles of the sentencing.


       We begin our analysis with these long-standing principles in mind. Appellate review
of the length, range or manner of service of a sentence is de novo. See Tenn. Code Ann. §
40-35-401(d) (2006). In conducting its de novo review, this court considers the following
factors: (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 enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2006); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The

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burden is on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code
Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that
the trial court adequately considered sentencing principles and all relevant facts and
circumstances, this court will accord the trial court’s determinations a presumption of
correctness. Id. at (d); Ashby, 823 S.W.2d at 169.


      In determining a specific sentence within a range of punishment, the trial court should
consider, but is not bound by, the following advisory guidelines:


       (1) The minimum sentence within the range of punishment is the sentence that
       should be imposed, because the general assembly set the minimum length of
       sentence for each felony class to reflect the relative seriousness of each
       criminal offense in the felony classifications; and

       (2) The sentence length within the range should be adjusted, as appropriate, by
       the presence or absence of mitigating and enhancement factors set out in §§
       40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c).


        Although the trial court should also consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2006);
State v. Carter, 254 S.W.3d 335, 343-44 (Tenn. 2008). We note that “a trial court’s weighing
of various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”
Carter, 254 S.W.3d at 345. In other words, “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].’” Id. at 343. “[A]ppellate courts are
therefore left with a narrower 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 ... [and are] bound
by a trial court’s decision as to the length of the sentence imposed so long as it is imposed
in a manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Id. at 345-46.


       Possession of .5 grams or more of cocaine with the intent to sell is a Class B felony.
Tenn. Code Ann. § 39-17-417(c)(1). Based upon his history of criminal convictions, the
appellant qualified as a Range III, persistent offender. Id. § 40-35-107. Therefore, the
applicable sentencing range was 20 to 30 years’ incarceration. Id. § 40-35-112(c)(2). The

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trial court imposed a midpoint sentence of 25 years’ incarceration based upon its
consideration of the appellant’s history of criminal convictions and criminal behavior,
including his admitted drug use, and beyond that necessary to establish his range
classification as a persistent offender. Id. § 40-35-114(1). The trial court also considered
the appellant’s history of parole revocations as evidence of the appellant’s inability to comply
with conditions of release. Id. §40-35-114(8). The record supports these findings.
Furthermore, the record reveals that the trial court considered the principles of sentencing in
arriving at its decision. Accordingly, we conclude that the trial court’s imposition of a 25
year sentence was appropriate.


                                       III. Conclusion


         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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