         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 12, 2005

              STATE OF TENNESSEE v. BOBBY SHANE HURLEY

                       Appeal from the Circuit Court for Hardin County
                            No. 8341 C. Creed McGinley, Judge



                  No. W2004-02487-CCA-R3-CD - Filed September 14, 2005


Convicted by a jury of possession of cocaine with intent to manufacture, sell, or deliver, a Class B
felony, and sentenced to a Department of Correction term of ten years as a Range I offender, the
defendant, Bobby Shane Hurley, appeals, challenging the sufficiency of the evidence, the severity
of his sentence, and the failure of the trial court to grant a sentencing alternative to incarceration.
We affirm the judgment of the trial court

                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
NORMA MCGEE OGLE , JJ., joined.

Guy T. Wilkinson, District Public Defender; and Richard DeBerry, Assistant District Public
Defender, for the Appellant, Bobby Shane Hurley.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General; G.
Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                 The evidence presented at trial showed that on February 18, 2004, an agent of the 24th
Judicial District drug task force and Savannah police officers executed a search warrant at the
residence of Gloria A. Porter in Hardin County. They found the defendant, Ms. Porter, Jackie Porter
(Gloria A. Porter’s son), Marguerita Wallace, and one other person seated at the kitchen table. When
the officers instructed the occupants to raise their hands, the defendant stood. Two officers and Ms.
Wallace saw an object drop to the floor beside the defendant. The object was shown to be a bag
containing crack cocaine.

               The defendant testified that he went to the Porter home on February 18, 2004, upon
Jackie Porter’s invitation and that he did so to see Marguerita Wallace. He testified that he
possessed no drugs that evening and that he did not go there for the purpose of acquiring any drugs.
He denied that he dropped a bag of cocaine on the floor.

               The officers found two other bags of crack cocaine and two bags of marijuana in a
chair, underneath the person of Jackie Porter. The defendant, Gloria A. Porter, and Jackie Porter
were charged with possession of the cocaine with intent to manufacture, sell, or deliver and with
possession of marijuana. No other persons were charged with offenses. Jackie Porter apparently
pleaded guilty prior to the joint trial of the defendant and Gloria A. Porter. Although the jury
convicted Gloria A. Porter of both counts, this court has determined on Ms. Porter’s direct appeal
that the evidence was insufficient to convict her on either count. See State v. Gloria A. Porter, No.
W2004-02464-CCA-R3-CD (Tenn. Crim. App., Jackson, Aug. ___, 2005). The jury acquitted the
defendant of possession of marijuana but convicted him of possession of cocaine with intent to
manufacture, sell, or deliver.

                The presentence report showed that the defendant had previously been convicted of
the following offenses: marijuana possession and two counts of contributing to the delinquency of
a minor in 2002; and possession of a weapon with intent to go armed, possession of schedule II
drugs, assault, resisting arrest, and criminal trespass in 1998. The court sentenced him as a Range
I offender to a mid-range sentence of ten years in the Department of Correction.

                In his first issue on appeal, the defendant claims that the evidence is legally
insufficient to show that he possessed cocaine.

                When an accused challenges the sufficiency of the evidence, an appellate court’s
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781,
2791-92 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This rule applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct
and circumstantial evidence. Winters, 137 S.W.3d at 654.

               Although a criminal offense may be established exclusively by circumstantial
evidence, Duchac v. State, 505 S.W.2d 237 (Tenn. 1973), an accused may be convicted exclusively
on circumstantial evidence only when the facts and circumstances are so strong and cogent as to
exclude every other reasonable hypothesis save the guilt of the defendant, State v. Crawford, 225
Tenn. 478, 482, 470 S.W.2d 610, 612 (1971). In other words, “[a] web of guilt must be woven
around the defendant from which he cannot escape and from which facts and circumstances the jury
could draw no other reasonable inference save the guilt of the defendant beyond a reasonable doubt.”
Crawford, 470 S.W.2d at 613.

              In determining the sufficiency of the evidence, this court should neither re-weigh the
evidence nor substitute its inferences for those drawn by the trier of fact. Winters, 137 S.W.3d at
655. Questions concerning the credibility of the witnesses, the weight and value of the evidence, as


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well as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State of Tennessee 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. Cabbage, 571 S.W.2d at 835.

                 In the present case, one officer testified that the defendant kept moving his hands
downward, despite the officer’s instructions for him to keep his hands raised. Although no one saw
the bag of cocaine in the defendant’s hand, witnesses testified that the bag of crack cocaine dropped
to the floor where the defendant stood during his encounter with the police officer. The jury was
justified in inferring from this evidence that the defendant possessed the cocaine found on the floor.
As circumstantial evidence, it excludes every reasonable hypothesis except for the guilt of the
defendant.

                 In his second issue, the defendant claims that the trial court imposed an excessive
sentence. When there is a challenge to the length, range, or manner of service of a sentence, it is the
duty of this court to conduct a de novo review of the record with a presumption that the
determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) (2003). 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 burden of showing that the sentence is improper is upon the appellant. Ashby,
823 S.W.2d at 169. In the event the record fails to demonstrate the required consideration by the
trial court, review of the sentence is purely de novo. Id. If appellate review, however, reflects that
the trial court properly considered all relevant factors and its findings of fact are adequately
supported by the record, this court must affirm the sentence, “even if we would have preferred a
different result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                The mechanics of arriving at an appropriate sentence are spelled out in the Criminal
Sentencing Reform Act of 1989. At the conclusion of the sentencing hearing, the trial court
determines the range of sentence and then determines the specific sentence and the propriety of
sentencing alternatives by considering (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 enhancement and mitigating factors, (6) any statements the
defendant wishes to make in the defendant’s behalf about sentencing, and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-210(a), (b) (2003); id. § 40-35-103(5); State
v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993).

                In the present case, the court applied enhancement factor (2), that the defendant has
a previous history of criminal convictions or criminal behavior in addition to that necessary to
establish the range, see Tenn. Code Ann. § 40-35-114(2) (2003), and enhanced the sentence from
the presumptive minimum sentence of eight years, see id. §§ 40-35-111(b)(2), -112 (a)(2), -210(c),
to a mid-range sentence of ten years.



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                 The defendant essentially claims that the trial court over-weighed his prior criminal
record in imposing a ten-year sentence. The weight to be afforded an enhancement factor is
entrusted to the trial court’s discretion so long as the court “complies with the purposes and
principles of the 1989 Sentencing Act and its findings are adequately supported by the record.” State
v. Martin, 146 S.W.3d 64, 69 (Tenn. Crim. App. 2004) (citing Tenn. Code Ann. § 40-35-210,
Sentencing Commission Cmts.); State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986). In the present
case, the trial court did not elucidate its reliance upon the sentencing purposes and principles, and
we do not afford its judgment a presumption of correctness; nevertheless, the two-year enhancement
of the sentence is easily justified by the defendant’s record of criminal convictions. We hold that
the trial court did not err in imposing a sentence of ten years.

                 Finally, the defendant claims that the trial court erred in failing to award him an
alternative sentence. Due to the failure to cite to authority or to the appellate record, however, this
claim on appeal is waived. See R. Tenn. Ct. Crim. App. 10(b). We observe, nevertheless, that the
absence of citation to authority may well be attributed to an absence of authority to support the
defendant’s claim to probation or other alternative sentence. Having received a ten-year sentence,
he was ineligible for probation. Tenn. Code Ann. § 40-35-303(a) (2003) (providing that only
defendants receiving sentences of eight years or less are eligible for probation). Furthermore, as the
recipient of a Class B felony conviction, the defendant enjoyed no statutory presumption of favorable
candidacy for other sentencing alternatives. See id. § 40-35-102(6) (limiting presumption of
favorable candidacy for alternative sentencing to recipients of convictions in Class C, D, or E). In
this situation, the state had no burden to justify a sentence involving incarceration. State v. Michael
W. Dinkins, No. E2001-01711-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Apr. 26,
2002); State v. Joshua L. Webster, No. E1999-02203-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App.,
Knoxville, Dec. 4, 2000); see Tenn. Code Ann. § 40-35-103(1) (2003).

               Discerning no error in the trial court’s proceedings, we affirm the judgment.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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