         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 11, 2000 Session

         STATE OF TENNESSEE v. SHUNNA DEMETRIA HILLIARD

                        Appeal from the Circuit Court for Henry County
                              No. 12846, Julian P. Guinn, Judge



                    No. W1999-00483-CCA-R3-CD - Filed March 30, 2001


Defendant appeals her conviction of two counts of sale of cocaine, both Class C felonies. She
received sentences of four (4) years on each count, running concurrent to one another, and was
ordered to pay a $100,000.00 fine on each count. Defendant contends that the evidence is
insufficient to support the convictions, and that the trial court erred in failing to sentence her to the
minimum sentence and failing to grant alternative sentencing. The judgment of the trial court is
affirmed.

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

CORNEL IA A. CLARK, SP . J., delivered the opinion of the court, in which DAVID H. WELLES, J. and
ALAN E. GLENN, J, joined.

Sam Wallace, Sr., Nashville, Tennessee, for the appellant, Shunna Demetria Hilliard.

Paul G. Summers, Attorney General & Reporter, Mark E. Davidson, Assistant Attorney General,
Robert “Gus” Radford, District Attorney General, Steve Garrett, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

        On June 15, 1998, Lieutenant James R. “Ricky” Kelly of the Union City Police Department
was assigned to the 27th Judicial District Violent Crime & Drug Task Force, assisting Paris detective
Donnie Blackwell in an undercover drug operation in Henry County. His car was equipped with
video recording equipment. About 7:40 p.m. on that evening Officer Kelly drove to the playground
in the Depot Hill area, where he saw a black male and a black female sitting on a bench. Officer
Kelly knew that the black male’s last name was Jones. He approached Jones and asked him to “hook
him up”, which meant that he was requesting to purchase cocaine. Jones asked what he wanted and
the officer said he wanted a “fifty”, which indicated he wished to buy a rock of cocaine worth
$50.00.
       In response to this request Jones walked over to a heavy-set black female nearby. Jones and
the female, identified by Kelly as the defendant, turned their backs to him and made an exchange of
some sort. Without approaching or speaking to anyone else, Jones then walked back to Officer
Kelly’s car and gave him a rock of crack cocaine. The officer handed Jones three $20.00 bills and
asked for change. Jones then went back to the defendant and gave her the money. In turn she gave
him two $5.00 bills which he brought back to the officer. Kelly then left the scene.

        Lieutenant Kelly returned to Officer Donnie Blackwell and turned the drugs over to him. He
also reviewed the audio and videotape with Blackwell. The officers then installed new tapes and
checked the serial numbers of new bills for use in a second transaction.

        About forty-five minutes later, Officer Kelly drove back to the same Depot Hill area, where
he saw Jones walking up Depot Street with the black female who had earlier been sitting with him
on the bench. Officer Kelly identified that woman as Kim Jackson. Jones waved Kelly down and
asked him if he needed “some more”. The officer stated that he did. Jones and Jackson got into
Kelly’s car with him and directed him around the block to the northwest corner of the playground.
Jones then got out of the car and again approached the defendant. He returned to the officer with a
rock of cocaine worth $50.00. The officer asked for $100.00 worth. Jones approached the
defendant, participated in another exchange with her while their backs were turned, and returned to
the officer. After unsuccessfully attempting to convince the officer that one rock was worth $100.00,
Jones produced two rocks. The officer purchased both rocks of cocaine and left.

        Lieutenant Kelly identified videotapes of each of the transactions. The defendant was not
easily visible in the first videotape, but was more visible in the second videotape. Kelly testified that
the defendant was involved in both transactions.

        Detective Donnie Blackwell testified that he drove to the Depot Hill park area about twenty-
seven minutes after the second drug transaction and saw the defendant standing in the park about ten
feet from the location where she was viewed on the videotape during the second drug transaction.
Blackwell noticed that the defendant was wearing the same clothes that he had seen her wearing
when he reviewed the earlier videotape. He testified that he knew the defendant personally and had
also known her mother for years. Officer Eric Long also testified that he knew the defendant
personally and had recognized her while viewing the videotapes.

        On the day after the purchases were made, Detective Blackwell produced a photographic
lineup for Lieutenant Kelly. Each of the five photographs in the lineup showed a heavy-set black
female. Lieutenant Kelly picked the defendant out of the lineup. Kelly also testified that he had seen
the defendant in person on several occasions since the purchases, and that he was able to identify her
each time as the black female with whom Jones deal for the drugs.

       Special Agent Kay Sherriff of the Tennessee Bureau of Investigation testified that the drugs
recovered after the purchases tested positive for cocaine in the amounts of 0.2 and 0.4 grams.



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       The defendant did not present any proof.

                              I. SUFFICIENCY OF THE EVIDENCE

         The defendant first challenges the sufficiency of the convicting evidence. The standard of
review for a challenge to the sufficiency of the evidence is whether, after considering all the evidence
in the light most favorable to the state, any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Burns, 979 S.W.2d 276, 286-87 (Tenn. 1998);
Tenn. R. App. P. 13(e). In determining the sufficiency of the evidence, this court will not reweigh
the evidence or substitute our own inferences for those drawn by the trier of fact. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Instead, on appeal, the state is entitled to the strongest legitimate
view of the evidence and to all reasonable and legitimate inferences that may be drawn therefrom.
Cabbage, 571 S.W.2d at 835. At this stage, it is the defendant who bears the burden of proving the
evidence is insufficient to support the jury’s verdict. State v. Pike, 978 S.W.2d 904, 914 (Tenn.
1998); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Questions concerning the credibility of witnesses, the weight and value to be given to the
evidence, as well as factual issues raised by the evidence, are resolved by the trier of fact, not this
court. Cabbage, 571 S.W.2d at 835. A guilty verdict rendered by the jury and approved by the trial
judge accredits the testimony of the witnesses for the state, and a presumption of guilt replaces the
presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

        The defendant argues that the evidence is insufficient because the videotapes of the
transactions are not conclusive. She also asserts that if the police officer truly believed a sale had
occurred in his presence he should have arrested her immediately. Officer Kelly explained, however,
that he had just begun an ongoing undercover operation which would have been compromised or
made impossible if he made an arrest after the first purchase. He also testified that while the
camera’s distance from the defendant made it impossible to capture a good picture of her, he had on
several occasions made an identification of the defendant as the heavy-set woman who accepted the
money and provided the cocaine in question. His identification was corroborated by two other
officers.

         The defendant also argues that because the state elected to proceed with the alternative counts
for sale of contraband rather than delivery of contraband, the cases must be dismissed. She relies
on the testimony of Officer Kelly that he never spoke to her directly. Defendant finally notes that
at the time of her arrest several months after the transaction, she did not have in her possession any
of the marked bills that were used for the purchase on the evening in question.

        Reviewing the facts in the light most favorable to the state, the evidence establishes that,
using another person as intermediary, the defendant on two separate occasions in the same evening
accepted money from an undercover police officer and provided crack cocaine for delivery to the
officer. Officer Kelly delivered money to Lonnie Jones, who delivered the money to the defendant.


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The defendant completed an exchange with Lonnie Jones, and Lonnie Jones returned to the officer
with crack cocaine. This occurred on two separate occasions. Sufficient proof existed to allow a
rational trier of fact to find beyond a reasonable doubt that this defendant on two separate occasions
did knowingly sell cocaine, a Schedule II drug. This issue is without merit.

                                         II. SENTENCING

       Defendant next contends that the trial court erred when it imposed concurrent sentences of
four years for each of her Class C felony convictions, and further erred by not permitting alternative
sentencing. We disagree.

        “When reviewing sentencing issues . . . 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 the presumption that the determinations made by the court from
which the appeal is taken are correct.” Tenn. Code Ann. §40-35-401(d). “However, the presumption
of correctness which accompanies the trial court’s action 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). In conducting our review,
we must consider all the evidence, the presentence report, the sentencing principles, the enhancing
and mitigating factors, arguments of counsel, the defendant’s statements, the nature and character
of the offense, and the defendant’s potential for rehabilitation. Tenn. Code Ann. §§40-35-103(5), -
210(b); Ashby, 823 S.W.2d at 169. The defendant has the burden of demonstrating that the sentence
is improper. Id.

       In this case, defendant was convicted of two counts of the Class C felony of sale of cocaine.
The sentence for a Range I offender convicted of a Class C felony is three (3) to six (6) years. Tenn.
Code Ann. §40-35-112(a)(3). If the court finds that enhancement and mitigating factors are
applicable, the court must begin with the minimum and enhance the sentence to reflect appropriately
the weight of any statutory enhancement factors. Then the court must reduce the sentence to reflect
appropriately the weight of any mitigating factors. Tenn. Code Ann. §40-35-210(e). The weight
afforded to enhancement and mitigating factors is left to the discretion of the trial court so long as
the court complies with the purposes and principles of the Tennessee Criminal Sentencing Reform
Act of 1989 and its findings are supported by the record. State v. Hayes, 899 S.W.2d 175, 185
(Tenn. Crim. App. 1995).

        The record indicates that in determining to impose the sentence of four (4) years on each
count, the trial court found that the following enhancement factors applied: (1) defendant has a
history of criminal convictions or behavior in addition to those necessary to establish the appropriate
range; (2) defendant was a leader in the commission of an offense involving two or more criminal
actors; (4) defendant delivered or sold a controlled substance to a minor within 1,000 feet of a public
park; (10) defendant had no hesitation about committing a crime when the risk to human life was
high; and (13) that the offenses occurred while the defendant was on probation from a prior felony
conviction. Tenn. Code Ann. §40-35-114. The trial court found that no mitigating factors applied.


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        The defendant has not specifically challenged any of the enhancement factors applied by the
trial court. She argues more generally that enhancement of the sentence from three (3) years to four
(4) years was inappropriate because she did not have any prior felony convictions. However, the trial
court properly applied enhancing factor (1), noting that she had multiple prior misdemeanor
convictions, including six for theft, two for assault, one for possession of marijuana, and one for
driving on a revoked license. The application of factor (1) was entirely justified.

         The evidence also supports the conclusion of the trial court that the defendant was a leader
in the commission of the offenses. She was the person in possession of the drugs and controlled
their distribution. She also had control of the money and provided the change for Lonnie Jones, who
was the go-between in the purchase. The runner had to go through her to effectuate the sale of the
cocaine. Thus, factor (2) also was properly applied.

        The state concedes that enhancement factor (4) was improperly applied because, although
the sale occurred on a public playground, it was not made to a minor. The state also concedes the
misapplication of enhancement factor (10), because there is no specific proof in the record that the
risk to human life was high during the course of these sales. We agree.

        We find that the trial court also misapplied enhancement factor (13) because, while these
felonies were committed at a time when defendant was on probation from a prior conviction, the
prior conviction was for a misdemeanor rather than for a felony. However, enhancement factor (8),
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community, does apply. It is clear from the record that not only were these felonies committed
at a time when defendant was on probation for prior offenses, but several of her prior offenses were
committed while she was either on bond or on probation as a result of even earlier offenses.

        Defendant further contends that the trial court could not consider any enhancement factors
because “the state did not move to enhance the punishment of the defendant as provided by law”.
This argument must fail for two reasons. First, it contains no citation to authority. Therefore, our
consideration of this issue is waived. See Tenn. R. Ct. Crim. App. 10(b); Tenn R. App. P. 27(a)(7).
Second, the applicable law is actually contrary to the position asserted by defendant. Tenn. Code
Ann. §40-35-210 requires the court to consider, among other factors, enhancement and mitigating
factors. It is not necessary for either party to request that consideration in order to assure that it is
given.

        Although the defendant argued at the sentencing hearing that several mitigating factors apply,
she does not assert in her brief on appeal that the court erred in failing to apply those factors. We
agree that no mitigating factors apply in this case.

        Even though we hold that the trial court erred in applying some enhancement factors, that
finding does not equate to an automatic reduction in sentence. State v. Keel, 882 S.W.2d 410, 423
(Tenn. Crim. App. 1994). Because we conclude that three enhancement factors are applicable and


                                                  -5-
that no mitigating factors are applicable, we affirm the imposition of four year sentences on each
count.

        Finally, defendant contends that she should have received alternative sentencing. Because
she was convicted as a standard offender of a Class C felony, she is entitled to the presumption of
an alternative sentence. See State v. Bonestel, 871 S.W.2d 163, 167 (Tenn. Crim. App. 1993); Tenn.
Code Ann. §40-35-102(5) and (6). The statutory presumption of an alternative sentence may be
rebutted by “evidence to the contrary”. See Tenn. Code Ann. §40-35-102(6). Sentences involving
confinement must be based on the statutory sentencing considerations of Tenn. Code Ann.
§40-35-103(1):

               (A) Confinement is necessary to protect society by restraining a defendant
       who has a long history of criminal conduct;
               (B) Confinement 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) Measures less restrictive than confinement have frequently or recently
       been applied unsuccessfully to the defendant.

       The first criterion was properly applied. This defendant has a lengthy history of criminal
conduct. Although she has no prior felony convictions, she accumulated ten (10) misdemeanor
convictions between the ages of eighteen (18) and twenty-two (22).

        Similarly, the trial court properly concluded that measures less restrictive than confinement
had been applied unsuccessfully. Of defendant’s ten prior misdemeanor convictions, eight were
apparently committed while she was on probation or some form of alternative sentencing. The two
felony convictions at issue in this action were also committed while the defendant was on probation
for a prior misdemeanor conviction.

        Finally, the trial court was justified in finding that confinement was necessary to avoid
depreciating the seriousness of the offense and to provide an effective deterrent to others. This was
not an isolated individual sale. The fact that the defendant was openly operating a drug business
while other people moved about on a public playground was significant to the trial court. Detective
Blackwell also testified that law enforcement officers had received a number of complaints from
people in this neighborhood about public drug dealing and about the fact that children could not play
in the park because they were afraid of the drug traffickers. The decision to deny alternative
sentencing was justified.

       Accordingly, the judgment of the trial court is affirmed in all respects.


                                                      ____________________________________
                                                      CORNELIA A. CLARK, SPECIAL JUDGE


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