         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            OCTOBER 1997 SESSION
                                                           FILED
                                                          November 13, 1997

                                                          Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  ) C.C.A. No. 02C01-9705-CR-00180
      Appellee,                   )
                                  ) Shelby County
V.                                )
                                  ) Honorable Bernie Weinman, Judge
                                  )
MICHAEL MOORE,                    ) (Sale of Cocaine)
                                  )
      Appellant.                  )




FOR THE APPELLANT:                   FOR THE APPELLEE:

A C Wharton                          John Knox Walkup
Shelby County Public Defender        Attorney General & Reporter

Edward G. Thompson                   Deborah A. Tullis
Assistant Public Defender            Assistant Attorney General
                                     Criminal Justice Division
Sherry Brooks                        Cordell Hull Building, 2nd Floor
Assistant Public Defender            425 Fifth Avenue North
201 Poplar Avenue, Second Floor      Nashville, TN 37243
Memphis, TN 38103
                                     William L. Gibbons
                                     District Attorney General

                                     P.T. Hoover
                                     Assistant District Attorney General
                                     201 Poplar Avenue, 3rd Floor
                                     Memphis, TN 38103




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                 OPINION
        The appellant, Michael Moore, was convicted by a jury of selling cocaine.

He received a ten-year sentence as a Range III, persistent offender. 1 He

appeals his conviction and sentence alleging that the trial court erred in failing to

correctly charge the jury and failing to articulate the factors used in computing his

sentence. Upon review, we affirm.



        The appellant contends that the trial court should have instructed the jury

with the law regarding the casual exchange of drugs. Generally, the sale of a

controlled substance in Tennessee is a felony. Tenn. Code Ann. § 39-17-417

(1991). However, the sale can be a misdemeanor if the controlled substance

was “casually exchanged.” Tenn. Code Ann. § 39-17-418 (1991). A casual

exchange results when the transfer is made without design. State v. Helton, 507

S.W.2d 117, 120 (Tenn. 1974). The state contends that because the evidence

clearly showed that the appellant acted with a definite design, the charge was

not warranted. At the motion for new trial hearing, the trial judge stated that he

felt that the facts of this case did not support such a charge.



        A criminal defendant has a constitutional right to a correct and complete

charge of the law. State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). However,

to be entitled to a charge on a lesser grade or class of the charged offense, there

must be some evidence to support the lesser offense. State v. Trusty, 919

S.W.2d 305, 311 (Tenn. 1996).



        The record reveals that the appellant flagged down two undercover police

officers driving through a residential area. The appellant approached the driver

and asked what she needed. The police officer told the appellant that she

wanted a $20 piece of cocaine. The appellant walked over to another man and



        1
          Note that a discrepancy exists between the judgment sheet and the sentencing hearing
transcript. Please s ee the latter part of this opin ion for a discuss ion of this oversig ht.

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retrieved a piece of rock cocaine. The police officer paid the appellant $20, took

the cocaine, and left. The appellant was then arrested.



       We find that the trial court was correct in disallowing the charge on casual

exchange. Nothing presented at trial indicates that the appellant possessed any

other motive for the transfer except pecuniary gain. See, State v. Prince, 713

S.W.2d 914 (Tenn. Crim. App. 1986). The evidence clearly illustrates that he

was acting with a clear, definite design. Therefore, the facts did not support a

charge concerning the casual exchange of cocaine. This issue is without merit.



       The appellant next contends that he is entitled to a new sentencing

hearing because the trial judge failed to articulate on the record his reasons for

the appellant’s ten-year sentence. We disagree.



       We first note that a discrepancy exists between the judgment sheet and

the sentencing hearing transcript. The judgment sheet indicates that the

appellant was convicted of a Class C felony as a Range III, persistent offender.

The sentencing range for a Range III, persistent offender convicted of a Class C

felony is not less than ten years nor more than fifteen years. Tenn. Code Ann. §

40-35-112(c)(3) (1990). The appellant was sentenced to 10 years incarceration,

the presumptive minimum within Range III. However, the sentencing transcript

states that the appellant was a Range II, multiple offender. Upon review of this

situation, we feel that the trial judge and the attorneys for both sides misstated

the appellant’s classification. It is clear that the prosecutor proved the requisite

felony convictions to classify the appellant as a Range III, persistent offender.

The defense attorney stipulated to these convictions. Furthermore, the defense

attorney asked the judge “to consider imposing the minimum amount of time in

this case, which would be ten years at 45 percent.” This request obviously refers

to the minimum sentence for a Class C felony committed by a Range III,

persistent offender. Tenn. Code Ann. § 40-35-112(c)(3) (1990). Therefore, we



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find the judgment sheet classifying the appellant as a Range III, persistent

offender to be correct.



       We find that the trial judge’s determination to sentence the appellant to

the presumptive minimum of ten years at forty-five percent to be appropriate.

This issue is without merit.



       Accordingly, finding no error of law mandating reversal, we affirm the

judgment of the trial court.




                                         ________________________________
                                         PAUL G. SUMMERS, Judge


CONCUR:



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______________________________
JOHN H. PEAY, Judge




______________________________
DAVID G. HAYES, Judge




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