        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                          NOVEMB ER SESSION, 1998          April 8, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9711-CC-00537
                               )
      Appellee,                )
                               )
                               )    ROBERTSON COU NTY
VS.                            )
                               )    HON. ROBERT W. WEDEMEYER
TONY A. BAKER,                 )    JUDGE
                               )
      Appe llant.              )    (Direct Appeal - Sale of Controlled
                               )    Substance)




FOR THE APPELLANT:                  FOR THE APPELLEE:

JOE R . JOHN SON , II               JOHN KNOX WALKUP
509 W est Court Sq uare             Attorney General and Reporter
Springfield, TN 37172
                                    DARYL J. BRAND
                                    Senior Counsel
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    JOHN CARNEY
                                    District Attorney General

                                    DENT MORRISS
                                    Assistant District Attorney
                                    Main Street
                                    Springfield, TN 37172



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                  OPINION
       On Februa ry 11, 199 7, a Robe rtson Co unty jury convicted Appellant Tony

A. Baker of two counts of selling cocaine. After a sentencing hearing on April 11,

1997, the trial court sentenc ed Appe llant as a Rang e II multiple offender to a term

of eight ye ars im prison men t for eac h cou nt, with the sentences to run

consecu tively. Appellant challenges both his convictions and his sentences,

raising the following issues:

       1) whether the evidence was sufficient to support his convictions;
       2) whether the trial court imposed sentences of excessive length; and
       3) whether the trial court erred when it imposed consecutive sentencing.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       Delores Walton testified that on June 28 and July 6, 1995, she was working

as a confidential police informant for the Nineteenth Judicial District Drug Task

Force. On both days, Walton called Appellant’s pager number and when he

called her bac k, she told him tha t she wanted to buy a “sixteenth.”



       Walton testified that after she called Appellant on June 28, 1995, Appellant

came to W alton’s ap artmen t and ask ed wha t she wa nted. W hen W alton to ld

Appellant that she wanted a “sixteenth,” Appellant placed a quantity of cocaine

on the table. When W alton recognized that the amou nt was n ot a full “sixteen th,”

she told Appellant that she would pay him $60 for the amount. Appellant then

placed some additional cocaine on the table a nd W alton p aid him $80. Walton

testified that when Appellant retrieved the additional amount of cocaine, she

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could see that Appellant was carrying more cocaine than the amount that he sold

to her. Walton also testified that she paid $80 to Appellant for a “sixteenth” of

cocaine on July 6, 1 995.



      Walton testified that although she had known Appellant for several years,

she had n ever u sed d rugs w ith him at any time. Walton also testified that when

she purchased cocaine from Appellant on June 28 and July 6, 1995, Appellant

never ga ve any ind ication tha t he wan ted to use the coca ine with he r.



      Agent William Stanton of the Tennessee Bureau of Investigation testified

that the substance Walton obtained fro m Ap pellant on June 2 8, 1995 , was .4

grams of cocaine base. Agent Stanton also testified that the substance Walton

obtaine d from A ppellant o n July 6, 19 95, was .5 gram s of coca ine base .



      Appellant testified that on June 28, 1995, he took some drugs to Walton,

she gave him $60, and he then left the residence. Appellant also testified that on

July 6, 1995, he took some cocaine to Walton, she pa id him so me m oney for it,

and he then left the residence. Appellant testified that on both occasions, he

believed that he an d W alton wo uld sm oke the cocaine togethe r.



                     II. SUFFICIENCY OF THE EVIDENCE




      Appellant conte nds th at the e videnc e was insuffic ient to supp ort his

convictions for two counts of selling cocaine. We disagree.




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       When an appellant challenges the sufficiency of the evidence, this C ourt

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s witnesses and resolves all conflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and re place s it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn . 1982). Hence, on appea l, the burde n of proo f rests with A ppellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appe al, “the

[S]tate is entitled to the strongest legitimate view o f the evid ence as we ll as all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is whether any ra tional trier of fact could have found the

accused guilty of every elemen t of the offen se beyo nd a rea sonab le doub t.

Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789, 61 L. Ed. 2d 560

(1979). In conducting our evaluation of the convicting evidence, this Court is

precluded from rew eighing o r recons idering the evidenc e. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996).             Moreover, this Court may not

substitute its own inferences “for those drawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure

provides, “findings of guilt in criminal actions w hether by the trial cou rt or jury

shall be set aside if the eviden ce is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”




                                          -4-
      In this case, Appellant was convicted of two cou nts of selling cocaine . In

order to prove that these offenses occurre d, the Sta te was required to prove that

Appellant knowingly gave cocaine to W alton in exchan ge for mon ey. See Tenn.

Code Ann. §§ 39-17-417(a)(3), (c)(2); 39-17-408(b)(4) (1997 & Supp. 1998).

Appellant concedes that on both J une 2 8 and July 6, 1995, he provided Walton

with cocaine in exchange for money.           Appellant argues, however, th at the

evidence only supported convictions for casual exchange of a controlled

substa nce. See Tenn. Code Ann. § 39-17 -418( a) (199 7) (“It is an offense for a

person to . . . casually exchange a controlled sub stance.”).          Specifically,

Appellant contends that these were casual exchanges because he alleges that

only a sma ll amount of money was exchanged, only a small amount of cocaine

was involved, and Appellant believed that he would be using part of the cocaine

himse lf. However, in State v. Carey, 914 S.W.2d 93, 96 (Tenn. Crim. App . 1995),

this Cou rt stated tha t a “casual exchange” can only occur “when the transfer of

the controlled substan ce is ma de witho ut design .” In this case , the Sta te’s

evidence shows that on both June 28 and July 6, 1995 , W alton c alled A ppella nt’s

pager number, Appellant called Walton on the telephone, Walton told Appellant

that she wanted to buy a “sixteenth,” Appellant responded by bringing a quan tity

of cocaine to Walton’s residence, Walton paid $80 to Appellant for the cocaine,

and Appellant took the money and left. Moreover, Walton testified that Appellant

never indica ted a d esire to use th e coc aine w ith her. T his evid ence clearly

established that the sale of cocaine on both occasions was by design and thus,

was no t a casua l exchan ge. Id.



      Appellant also contends that the evidence was insufficient to s uppo rt his

convictions because he alleges that it is obvious that Walton and another witness

                                        -5-
for the State were no t telling the truth during their testimony. However, “[t]he

credibility of the witnesses, the weight to be given their testimony, and the

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

jury as the triers of fact.” State v. Cribbs, 967 S.W.2d 773, 793 (Ten n. 1998).

The jury obviously believed the State’s witnesses, and a ny furth er revie w of the ir

credibility is foreclosed.



       This issu e has n o merit.



                             III. LENGTH OF SENTENCES




       Appellant contends tha t the trial court erroneou sly imposed longer

sentences than he deserves. We disagree.



       “When reviewing senten cing issu es . . . including the granting or denial of

probation and the length of sentence, the appellate court shall conduct a de novo

review on the record of such issues. Such review shall be conducted with a

presumption that the determinations made by the co urt from which the ap peal is

taken are correct.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, the

presum ption of correc tness which acco mpa nies th e trial co urt’s ac tion is

conditioned upon the affirmative showing in the record that the trial cou rt

considered the sentencing principles and all rele vant facts a nd circum stance s.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our review, we

must consider all the evidence, the presentence report, the sentencing principles,

the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s

statements, the nature and character of the offense, and the defendant’s potential

                                         -6-
for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5); 40-35-210(b) (1997 & Supp.

1998); Ashby, 823 S.W.2d at 169.                “The defendant has the burden of

demonstrating that the se ntence is improp er.” Id. Because the record in this

case indicates that the trial court properly considered the sentencing principles

and all relevant fa cts and c ircums tances , our review is de novo with a

presumption of correctness.



       In this case, Appellant was convicted of two counts of selling cocaine, a

Class C felony. See Tenn. Code Ann. §§ 39-17-417(a)(3), (c)(2); 39-17-408(b)(4)

(1997 & Supp. 1 998). The s entence for a Rang e II offende r convicted of a Class

C felony is between six and ten years. Tenn. Code Ann. § 40-35-112(b)(3)

(1997). When both enhancement and mitigating factors are applicable to a

sentence, the court is directed to begin with the minimum sentence, enhance the

sentence within the range as appropriate for the enhancement factors, and then

reduce the sente nce within the rang e as ap propriate for the m itigatin g factors.

Tenn. C ode Ann . § 40-35-210 (e) (1997).



       In imposing a sentence of eight yea rs for both of Appellant’s convictions,

the trial court determined that enhancement factor (1) applied because Appellant

had a history of criminal convictions or criminal behavior in addition to those

necessa ry to establish the appropriate sentencing range. See Tenn. Code Ann.

§ 40-35-114 (1) (1997). Th e trial court also determined that enhancement factor

(8) applie d bec ause Appe llant ha d a pre vious h istory of unwillin gnes s to co mply

with the con ditions of a senten ce involving release in to the com munity. See

Tenn. Code Ann. § 40-35-114(8) (1997). In addition, the trial court found that

Appe llant’s education, employment history, acceptance of responsibility, and

                                          -7-
remorse were en titled to some weight as mitigators . See Tenn. Code Ann. § 40-

35-113(13) (1997). In fact, the trial court noted that if it ha d not b een fo r this

mitigating evidence, the court would have imposed nine or ten year sentences.



         Appellant does not challenge the application of enhancement factor (1) and

we conclud e that it was properly applied. Indeed, the record indicates that

Appellant has three prior convictions for the sale of cocaine and one prior

conviction for possession of cocaine.1 Similarly, Appellant does not challenge the

application of enha ncem ent factor (8 ). We also conclude that this enhancement

factor was properly applied because the record indicates that Appellant

comm itted the offe nses in th is case w hile he wa s on sup ervised p robation .



         Appellant does ch allenge th e trial court’s fa ilure to apply mitigating factor

(1), that Appellant’s criminal conduct neither caused nor threatened serious

bodily injury. See Tenn. Code Ann. § 40-3 5-113(1) (199 7). However, this C ourt

has previously held that this fac tor is inapplicable in cases involving the sale of

cocaine . State v. Keel, 882 S.W .2d 410, 422 (Tenn. Crim . App. 1994 ). Even if

this factor had been applied, it would ha ve been entitled to little we ight. See

State v. Hoyt E dward Carro ll, No. 03C01-9607-CC-00254, 1997 WL 457490 at

*4 (Tenn. Crim App., Knoxville, Aug. 12, 1997) (holding that in cases involving

drugs, mitigating factor (1) is entitled to little weight). Therefore, we conclude that

the eight year sentences are entirely appropriate in this case. This issue has no

merit.


         1
          The record indicates that the three convictions for selling cocaine were all Class B felony
con viction s. O nly two conv iction s we re ne ces sary in orde r to cla ssify A ppe llant a s a R ang e II m ultiple
offender. Tenn. Code. Ann. § 40-35-106(a)(1) (1997). Thus, Appellant had a history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate sentencing
range.

                                                         -8-
                             IV. CONSECUTIVE SENTENCING




        Appellant contends tha t the trial court erred when it imposed co nsecutive

sentencing. We disagree.



        Consec utive sentencing is g overned by T ennessee Code Annotated

section 40-35-115.           The trial court has the d iscretion to order co nsecutive

sentencing if it finds that on e or mo re of the re quired sta tutory criteria e xist. State

v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995 ). Furth er, the c ourt is

required to dete rmine wheth er the c onse cutive s enten ces (1 ) are re ason ably

related to the severity of the offenses committed; (2) serve to protect the public

from further criminal con duct by the offend er; and (3) are congru ent with general

principles of senten cing. State v. Wilkerson, 905 S.W .2d 933, 939 (Tenn. 199 5). 2



        In imposing consecutive sentencing, the trial court found that Appellant

was an offende r whose criminal re cord wa s extens ive. See Tenn . Code Ann. §

40-35-115(2) (1997). In addition, the trial court also noted that Appellant had

committed the offenses in this case while he was on probation for previous

convictions. See Ten n. Co de An n. § 40 -35-1 15(6) (1997 ). As pr evious ly stated,

Appe llant’s criminal record consists of three prior con victions for the sale of

cocaine and one prior conviction for possession of cocaine. In addition, Appellant

admitted during the sentencing hearing that he had been using illegal drugs for

appro ximate ly seven years before h e com mitted the offenses in this case . We


        2
         At this time, it is unsettled whether Wilkerson applies to all seven of the statutory categories for
conse cutive se ntencing or only to the “d angero us offe nder” ca tegory. See State v. David Keith Lane, No.
03C0 1-9607 -CC-0 0259, 19 97 W L 3320 61, at *6 (T enn. Cr im. Ap p., Knox ville, June 18 , 1997), perm. app.
granted, (Tenn. 1998). However, as discu ssed below, our conclusion that cons ecutive sentences are
appropriate in this case is the same under either interpretation.

                                                   -9-
conclude that the evidence supports a finding that Appellant is an offender whose

criminal re cord is exte nsive.



       In this case, the trial court made no express finding that the Wilkerson test

was satisfied. As previously noted, it is not clear whether the Wilkerson test

applies in this case. H oweve r, assum ing that Wilkerson does apply, we conclude

that the test is sa tisfied. First, the record indicates that consecutive sentences

are nece ssary in order to protec t the pu blic from future c rimina l misconduct on

the part of Appellant. Indeed, Appellant was previously convicted of four cocaine-

related offenses that were committed over a period of approxima tely four years

and he has be en convicted o f two more co caine-related offen ses that were

committed while h e was on su pervise d prob ation. F urther , Appe llant admitted

that he used illegal drugs for approximately seven years, even after he had

participated in a drug-r ehabilitation program . This continuing disrespect for the

law indica tes tha t Appe llant’s p otentia l for reha bilitation is poor. In addition, we

conclude that consecutive sentencing is reas onab ly related to the severity of the

offenses and is congruent with general principles of sente ncing . In sho rt, we ho ld

that the trial court did not abuse its discretion when it imp osed con secutive

senten cing in this c ase. Th is issue ha s no m erit.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




                                           -10-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




                             -11-
