        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 13, 2010

                    STATE OF TENNESSEE v. SHUN JELKS

             Direct Appeal from the Circuit Court for Haywood County
                      No. 6184    Clayburn L. Peeples, Judge


               No. W2010-00066-CCA-R3-CD - Filed January 14, 2011


The defendant, Shun Jelks, was convicted of introduction of contraband in a penal facility,
a Class C felony. He was sentenced to four years in confinement as a Range I, standard
offender. On appeal, he argues that the evidence was insufficient to support his conviction
and that he was improperly sentenced. After careful review, we affirm the judgment from
the trial court.

  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 T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

Tom W. Crider, District Public Defender, and J. Diane Blount, Assistant Public Defender,
for the appellant, Shun Jelks.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Garry G. Brown, District Attorney General; and Jason Scott, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The defendant returned to the Haywood County Jail on January 25, 2008, to continue
his weekend sentence. When a corrections officer performed a routine search on the
defendant, something “bulky” was found in one of the defendant’s tennis shoes. The officer
recovered three “blunts,” which he described to his supervisor as rolled cigars and some
leaves. The defendant neither admitted nor denied that the items recovered belonged to him,
but he stated, “You got me.” The items were submitted to the Tennessee Crime Lab for
testing, and it was determined that the three cigars contained marijuana. The defendant
testified that he had hidden tobacco in his shoe but denied that it was marijuana. He claimed
that he thought he was being prosecuted for possessing tobacco.

                                           Analysis

        On appeal, the defendant argues that the evidence was insufficient to support his
conviction for possession of marijuana in a penal facility. When an accused challenges the
sufficiency of the evidence, this court must review the record to determine if the evidence
adduced during the trial was sufficient “to support the finding by the trier of fact of guilt
beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or
reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this
court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary,
this court is required to 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. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).

       The trier of fact, not this court, resolves questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised
by the evidence. Id. In State v. Grace, the Tennessee Supreme Court stated that “[a] guilty
verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476
(Tenn. 1973).

       Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused has the burden in this court of illustrating why the
evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493 S.W.2d at 476. Pursuant to Tennessee Code
Annotated section 39-16-201(b), “[i]t is unlawful for any person to: [k]nowingly and with
unlawful intent take, send or otherwise cause to be taken into any penal institution where
prisoners are quartered or under custodial supervision any . . . controlled substances. . . .”
T.C.A. § 39-16-201(b)(1) (2007).

       Here, the record reflects that the defendant was knowingly in possession of three
cigars when he was admitted to the Haywood County Jail to serve time toward his sentence.
He acknowledged at trial that he possessed the cigars but denied that they contained
marijuana. During the search of the defendant, a correctional officer discovered tobacco and

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contraband stuffed into one of the defendant’s shoes, and, when the officer found the
marijuana, the defendant said, “You got me.” The officer removed the contraband in the
presence of his supervisor. The contraband was tested and was identified as marijuana. The
evidence was sufficient to support the defendant’s conviction.

       Next, the defendant argues that his sentence is excessive and that the trial court erred
in ordering him to serve his sentence in confinement. Specifically, he contends that he
should have been granted probation or community corrections. This court’s review of the
sentence imposed by the trial court is de novo with a presumption of correctness. T.C.A. §
40-35-401(d). This presumption is conditioned upon an affirmative showing in the record
that the trial judge considered the sentencing principles and all relevant facts and
circumstances. State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999). If the trial court fails to
comply with the statutory directives, there is no presumption of correctness and our review
is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).

       The burden is upon the appealing party to show that the sentence is improper. T.C.A.
§ 40-35-401(d), Sentencing Commission Comments. In conducting our review, we are
required, pursuant to Tennessee Code Annotated section 40-35-210(b), to consider the
following factors in sentencing:

       (1) [t]he evidence, if any, received at the trial and the sentencing hearing; (2)
       [t]he presentence report; (3) [t]he principles of sentencing and arguments as
       to sentencing alternatives; (4) [t]he nature and characteristics of the criminal
       conduct involved; (5) [e]vidence and information offered by the parties on the
       enhancement and mitigating factors in [sections] 40-35-113 and 40-35-114;
       and (6) [a]ny statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

        If no mitigating or enhancement factors for sentencing are present, Tennessee Code
Annotated section 40-35-210(c) provides that the presumptive sentence for most offenses
shall be the minimum sentence within the applicable range. State v. Lavender, 967 S.W.2d
803, 806 (Tenn. 1998); State v. Fletcher, 805 S.W.2d 785, 788 (Tenn. Crim. App. 1991).
However, if such factors do exist, a trial court should enhance the minimum sentence within
the range for enhancement factors and then reduce the sentence within the range for the
mitigating factors. T.C.A. § 40-35-210(e); State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001).
No particular weight for each factor is prescribed by the statute, as the weight given to each
factor is left to the discretion of the trial court as long as the trial court complies with the
purposes and principles of the sentencing act and its findings are supported by the record.
State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002); see T.C.A. § 40-35-210,
Sentencing Commission Comments. Nevertheless, should there be no mitigating factors, but

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enhancement factors are present, a trial court may set the sentence above the minimum within
the range. T.C.A. § 40-35-210(d); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

       If our review reflects that the trial court followed the statutory sentencing procedure
and imposed a lawful sentence after giving due consideration and proper weight to the factors
and principles set out under sentencing law and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would
have preferred a different result. State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000).

       The defendant argues that his sentence should have been set at the minimum of three
years rather than enhanced to four years. The record reflects that the trial court considered
the sentencing principles and all the relevant facts and circumstances, which entitles the
findings to a presumption of correctness. The appropriate range of a sentence for a defendant
convicted of a Class C felony as a Range I, standard offender is three to six years. In
determining the appropriate sentence, the trial court stated that the defendant had a record
that included convictions of vandalism, theft, robbery, harassment, possession of stolen
property, assault, and weapons charges. The trial court concluded that the defendant’s prior
record was significant. It also determined that the maximum sentence was unnecessary but
a sentence in excess of the minimum was appropriate. The record also reflects that the
defendant was on probation when he committed the underlying crime. The trial court
imposed a sentence that is consistent with the purposes of the sentencing act; therefore, the
defendant is not entitled to relief on this issue.

       The defendant also argues that the trial court should have granted some form of
alternative sentencing. Under the 1989 Sentencing Act, sentences involving confinement are
to be based on the following considerations contained in Tennessee Code Annotated section
40-35-103(1):

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

       (B)    [c]onfinement 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)    [m]easures less restrictive than confinement have frequently or recently
              been applied unsuccessfully to the defendant.

See also State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997); State v. Millsaps,
920 S.W.2d 267, 270 (Tenn. Crim. App. 1995). Pursuant to the 2005 revisions to the

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Sentencing Act, a defendant is eligible for probation if the sentence received by the
defendant is ten years or less, subject to some statutory exclusions. T.C.A. § 40-35-303(a)
(2006). A defendant with a total effective sentence in excess of ten years is eligible for
probation if the individual sentences imposed for the convictions fall within the probation
eligibility requirements. A defendant is not entitled to a presumption that he is a favorable
candidate for probation.

       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. A court shall consider, but is not bound by, this advisory
sentencing guideline. T.C.A. § 40-35-102(6). The trial court ordered the defendant to serve
his sentence in confinement and held that measures less restrictive than confinement had
been frequently or recently applied unsuccessfully to the defendant. The trial court also
noted that the defendant had a lengthy criminal history to establish a lack of potential for
rehabilitation. The defendant has not established on appeal that the trial court improperly
imposed his sentence. Therefore, he is not entitled to relief.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgment from the
trial court.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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