# FILED
April 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON FEBRUARY

1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9704-CC-00157 Appellee, ) ) WEAKLEY COUNTY VS. ) ) HON. WILLIAM B. ACREE, FREDERICK OTTITUS EDWARDS, ) JUDGE

) Appellant. ) (Sale of cocaine - four counts)

FOR THE APPE LLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP 2016 Eighth Ave., South Attorney General & Repor ter Nashville, TN 37204 (On Appeal) RUTH A. TH OMPSON Counsel for the State JOSEPH P. ATNIP 425 Fifth Ave., North Public Defender Cordell Hull Bldg., Second Fl. P.O. Box 734 Nashville, TN 37243-0493 Dresden, TN 38225 (At Trial) THO MAS A. THO MAS District Attorney General JIM CANNON Asst. District Attor

ney General P.O. Box 218 Union City, TN 38261

OPINION FILED:____________________
AFFIRMED IN PART; REVERSED AND DISMISSED IN PART JOHN H. PEAY, Judge2 O P I N I O N

A Weakley Co unty ju ry conv icted th e defendant of four c ounts of s

ale o f less than 0.5 grams of cocaine. The trial court sentenced him to serve six yearson each conviction and ordered the sentences to run concurrently. The defendant was also fined two thousand dollars ($2000). I n this appeal as of right, th e defendant cha llenges th e sufficiency of the evidence for one of his convi ctions, the uncorroborated accomplice testimony, and the

length of his sentences. After a review of the record and applicable law, we rever

se and dismiss one of thedefendant’s convictions for s elling cocaine, but affirm his remaining convi ctions and the sentences ordered for each of those convictions.

The defendant’s conviction s stemmed from an undercover operati on involvi ng the Drug Task Force of Weakley County . Nathan Jackson, who had been previouslyarrested on drug charges, agreed to act as an undercover agent for the task force rather than face the consequences of his arrest. Danny Harris, an officer with the task force, testified that Jackson had been paid for each of the “buys” he made. Harris further explained that

Jackson had been provided marked money with which to buy the drugs and that Jackson had been wearing a wire transmitter during the transactions.

Harris testified that Jackson had made four buy s in May 1996 that relat ed to the defendant. He testified that on May 10, he had given Jackson forty dollars ($40) and that J a ckson had gone to the Roxbor ough area in Martin. H arris explained that Jackson had not been looking for anyone in particular from whom to buy drugs. However, when Jackson returned to the meeting place, Jacks on told Harris that th e drugs had been purchased from “Fred.” The defendant’s name is Frederick Edwards. Harris later showed J ackson a pho to display of four men, includi ng the defendant. Jackson identified the defendant as the man who had sold him the cocaine. He furth er testified that he had seen the defendant prior to the May transactions.3 On May 13, 1996, Jackson was giv en sixty dollars ($60.00) and he again wentto the Roxborough area. Harris testified that Jackson had run into Joe Easl ey and Easley had ma de contac t with a third person for the drugs. Harris further testified that he had been in the area where Jackson had been buying the drugs and that shortly after the transaction, he had seen Easley riding in a

white Cadillac w

ith another man, who he thoughtwas the defendant. David B lurton, an officer with Har ris on that day, testified that he had definitely recogniz ed Joe Easley and that he had l ater identified the defendan t afterlooking at a photograph of hi m. A check of the car’s license plate revealed that it belonged to a man named Chet Graves. Harris testified that J ackson had been familiar with Graves prev

iously and would not h ave confused Graves with the defendant.

On May 17, 1996, Jackson ag ain went to the Roxbor ough area with six

ty dollars ($60). Through the transmitter, Harris heard Jackson holler to Fr ed, “What’s goin’ on, man?” Nothing else w as heard on the transmitter and H arris later met Jackson at the meeting place where Jackson produced the rock cocai ne.

On May 19, 1996, Jackson again found Joe Ea sley. This time, Easley took Jackson to Puckett Plaza wher e Jackson ultimately pur chased t he cocaine. In the indictment

related to this date, the defendant wascharged with sell ing the cocaine to Joe Easley, not Jackson. Easley was then charged w

ith delivering the cocaine to Jackson. Jackson testified that with the exception of this transaction, the cocaine was purchased directly from the defendant.

The defendant testified t hat he had not sold any drugs to Jackson. He could not specifically identify his whereabouts on those days but said he must have been

“ around his house” because he was under house arrest on unrelated matters . Th e defendant lives with his mother in Puckett Plaza. The defendant further testified that Joe Easley and Chet Graves

are his cousins. How

ever, he testified he would not hav e been4

in Graves’ car at any

time because he and Graves do not get along . The defenda nt’s mother testified that the defendant is generally called “Frederick” rather

than “Fred” but that she had heard some people call him “Fred.”
The defendant now argues that the ev idence is insufficient

to convict him of the May 19, 1996, sale of cocaine to Joe Easley. He also argues that the evidence is insufficientto sustain “some or all conviction s in that [he] has been convi cted on the uncorroborated testimony of an accomplice.” We will address the accomplice is sue first.

It is tru e that in Tennessee a defendant cannot be conv icted on the uncorroborated testimony of an accomplice. Sherrill v. State , 204 Tenn. 427, 321 S.W.2d 811, 814 (1959). An accomplice is defined as “a person who know ingly, voluntar

ily, and with common intent with the pri ncipal offender, unite s in the commission of a crime.” Clapp v. State , 9 4 Tenn. 186, 30 S.W. 214, 216 (1895). To corroborate the testimony of an accomplice, “there should be some fact testified to, entirely independent of the accomplice’s evidence, which, tak en by itself, leads to the inference, no

t only that

a crime has been committed, but also that the defendant is implicated in it.” Clapp , 3 0 S .W. at 2 16

. This corroboration must con sist of some fact or circumstanc e which affects the identity of the defendant.

The defendant’s contention that his con victions cannot stand because there was no corroboration of acc omplice testimony is w ithoutmerit. First, the record sh ows no indication that the defendant made a special request to have the jury char ged on the accomplice issue. The jury instructions make no re ference to J ackson acting as an accomplice. Thus, the defendant’s f ailure to make such a request constitutes a w aiver of the issue. State v. Foster , S.W.2d 846, 848 (Tenn. Crim. App. 1988). Second, even if the defendant had requested such an i nstruction, he still w ould notprevail on this issue. Nathan Jackson w

as employed

as a paid info rmant at the t ime th ese offenses were5

committed. Thus, he cannot be said to have knowingly, v oluntarily, and wi

th common intent engaged in the commission o f the crimes. Jackson was being used as an informant and was cooperating w ith the police, thus he could not have been oper atin g with a common intent with the defendant. S ee Halquist v . State , 489 S.W.2d 88, 94 (Tenn. Crim. App. 1972), overruled on other gr ounds , 598 S.W.2d 2 09 (Ten n. 1980). Because Jackson was not an accompl ice, his testimony do es not need corroboration. State v. Steve Edward H ouston , No. 01C01-9606-CC-00 280, Giles C

ounty (Tenn.Crim. App. fil ed June 26, 1997, at Nashvill e); State v. Preston Bernard Crowder and Cynthia Diane Southall , No. 01C01-9304-CR-00143, Davidson County (Tenn.Crim. App. filed March 14, 1995, at Nashvi lle). Therefore, this iss ue is without merit.

We now turn to th e defendant’s contention that regar dless of the accomplice issue, the evidence is insufficient to suppo rt his con viction for the May 19 , 1996, transaction. As noted above, this conv iction related to the sale of cocaine to Joe Easley, not Jackson. A defendant challeng ing the sufficiency of the proof has the burden of illustrating to this Court why the evidence is insufficient to support the verdict r

eturned bythe trier

of fact in his or her case. This Court will not disturb a verdict of guilt for lack of sufficient evidence unless th e facts contained in the record a nd any inferences which maybe drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty bey ond a rea sonab le doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).

When an accused challengesthe sufficiency of the convic ting evidence, we must review the evi dence in the ligh t most favorable to the prosecution in determining
w hether “ any rational trier of fact could have found the essential elem ents of the crim e beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford the State the strongest legitimate view of the proof contained in the record as well6

as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the eviden ce, as well as factual issues raisedby the evidence are r esolved bythe trier of fac

t , not this Court. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury and approv ed by t he trial judge accredits the testimony of the witnesses

for the State, and a presumptio n of guil t replaces the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

The defendant

argues that the eviden ce was insuffi ci ent to show that he
was involved in a trans

action with Easley that

involved cocaine. He further contends that the evidence failed to show that he wa s in fact the person that supplied Joe Easley with the cocaine that was ultimately delivered to the informant, Jackson. W e have no trouble concluding that the evidence did demonstrate that an amount of cocaine was purchased byJackson on M ay 19, 1996. Testimony from a TBI special agent foren sic scientist confirmed thatthe purchase contained 0.3 gr ams of cocaine base. However, we ha ve
m ore d ifficulty concluding that the evidence demonstrates that the defendant was the seller.

At trial, Jackson was less than clear when

he explained the transacti on that occurred on May 19, 1 996. Jackso n testified that he had boug ht the cocai ne from t he defendant on al l occasio ns except the last whe n Joe Easley made the transac tion between Jackso n and the seller . Jacks

on does n ot ident ify

the defendant as the seller. The onlyother tes timony regarding this transaction came from Officer Harris. Harris testified that on this day he had been li stening to the trans mission f rom the wireless transmitter

worn by Jackson. He testified that Easley and Jackson had gone to Puckett Plaza, a housing complex w here the defendant resides. He said that from the transmitter7

he had hear d Joe Easl ey h oller for the defendant. Howev er, he did not hear the defendant’s name being called and did not explain how he had known that Easley had been calling for the defendant.

From this evidence, we c annot allow the convic

tion to stand. Jackson could not identify the defendant as the sell er in this transaction. He o nly assum ed that the defendant had supplied Joe Easley w ith the cocaine. Likewi se, Harris did not see the defendant provide thedrugs to Easley, nor did Harris testify that he heard the defendant’s voice over th e transmitter or that even the defendant’s name was used. From this minimum amount of evidence, we cannot c onclude beyond a reasonable doubt that the defendant sold the cocaine to Easley. Therefore, we dismiss his conviction for the May 19, 1996, transaction. The remaini ng convictions, how ever, are affirmed.

As his final issue, the defendant arg ues that his sentences are excessive. He was sentenced as a Range I standard offender to six years on each conviction, the top of his applicable range for a Class C felony. The defenda nt argues that the trial court erred when it refused to apply a requested mitigating factor. He contends that the fact that his cond uct nei ther caused nor threatened ser ious bodily injury

should have been used to mitigate his sentence. T.C.A. § 40-35-113(1).

When a defendant complains of his or her sentence , we must conduct a de
novo review with a presumption of correctness. T.C .A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appeal ing party. T.C.A. § 40-35-401(d) Sentencing Com mission Comments. This presumption, however, “is conditioned upon the affirmative showing in the record that

the trial court considered the sentencing principles and all relevant facts and circumstances.” St ate v. Ash by , 823 S.W.2d 166, 169 (T enn. 1991).8 A portion of the Sentencing Reform A ct of 1989, codified at T.C.A. § 40-35-210, established a number of specific procedures to be foll owed in sentencing. This section m andates the co urt’s considerat ion of the fo llowing:

(1) The evidence, if any, recei ved at the trial and t h e sentencing hearing; (2) [t ] he presentence report; (3) [t]he principl es of sentencing and arguments as t o 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 miti gating factors in §§ 40-35-113 and 40-35-114; and ( 6) [a]ny statement the defendant wishesto make in his own behalf abo ut sentencing. T.C.A. § 40-35-210.

In addition, this section pr ovides that the minimum sentence with in th e range is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence as appropria te for the enhancement factors and then reduce thesentence within the rang e as appropriate forthe mitigating factors. If there are nomitigating factors, the court may set the sentence above the minimum in that range but still within the range. Theweight to be given each factor is left to the discretion of the trial judge. State v. Shelton , 8 5 4 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

The Act further provides that “[w]henever the court imposes a sentence, it shall place on the record either orallyor in writing, what enhancement or mitigating factors it found, if any, as well as findings of fact as requir ed by § 40-35-209.” T.C.A. § 40-35-210(f) (emphasis added).Because of the importance of enhancing and mitigating factors under the sentencing guidelines, even the abse nce of t hese factors must be recorded if none are found. T.C.A. § 40-35-210 comment. These findi ngs by the trial judge must be recorded in order to allow an adequate review on appeal.9 The defendant arg ues th at the trial court erred when it rejected the application of mitigati on fact or number one, that his conduct nei ther caused nor threatened serious bodily injury. The trial court simply stated that the factor did not apply and did not offer

any further explanation. The defendant now argues that the “net effect of [his] conduct [was] that the cocaine w as removed from the stream of commerce.” He further argues that “to contend that [his] conduct with regard to thi s uningested cocaine caused or threatened injury of any kind, let alone the serious bodily injury referenced in § 40-35-113(1), is unmitigated nonsense.”

Man y ti mes this Court has addressed mitigation factor one in connec tion with drug cases. Howev er, different results have been produced. See, e.g. , State v. Keel , 882 S.W.2d 410 (Tenn. Crim. App. 1994)(finding factor one not applicable in drug of fense cases); State v. Tyrone

Clay , No. 02C01-9608-CC-00261, Lake County (Tenn. Crim. Ap p. filed Aug. 18, 1997, at Jackson)( applying factor one to def endant c onvicted of three counts of sale of cocaine); State v. George E. Martin, Jr. , No. 02C01-9512-CC-00389, Madison County (Tenn. Crim App. fil ed Aug. 18, 1997, at Jackson)(rejecting

application of factor where defendant convic ted of possession with intent to sel l cocaine); State v. William K. Wilson , No. 02C01-9608-C C -00272, Decatur County ( Tenn. Crim. App. filed Aug. 5, 1997, atJackson)(concluding factor one not available for defendant convicted of offense involving a ser ious drug such as cocai ne or crank); State v. Troy Carney and James Andrew Slaughter, Jr. , No. 01C0 1-9412- CR-00425 , Davidson County (Te nn. Crim. App. filed Feb. 23, 1996, at Nashville)( applying factor one to

defendant Slaughter when he had been convicted of conspiracy and four cou nts of se lling drugs ). In this c ase, we con clude that ev en if factor one had been applied, it would have been en titled to little weight and would not have affected the l ength of the defendant’s sentences. See State
v. Charlie Ma rshall Flo yd , No. 02C01-9611-CC-00434, Obion County (Tenn. Crim. App. filed Sept. 19, 1997, at Jackson)(findi ng weight to be gi ven this factor

would be negligible); State v. Hoyt Edward Carroll , No. 03CO1-9607-CC-00 254, Hawki ns County (

Tenn. Crim.1 The followi ng enhancement factors fr om T.C.A. § 40-35-114 were appl ied: t he defendant has a previous hi story of

criminal con victi ons in addition to t hose necessary t o establi sh the appropri ate range (1); that the defendant has a previous history of unwillingness to comply with the conditions of a sentence invol

ving rel ease in the community (8); and t hat the i nstant offense was committed while the defendant was on rel ease status fr om a previous fel ony (13). The record clear ly suppor ts the applicat ion of th ese factors, and the defendant does not argue t hat any of the factor

s were inappropriate. 1 0 App. filed Aug. 12, 1997, at Knox ville)(finding factor

one entitled to little weight in cases involving drugs). Three enhancement factors were clearly

shown. 1 A maximum sentence of six years is entirely appropriate for this defendant. We f ind no abuse of discretion on behalf of the trial court.

In conclusion , we reverse and dismiss the defendant’s conviction for the Ma y 19, 1996, transaction. Howe ver, we affirm his remai ning convictions and the sentences ordered for each of those convic tions

_______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH B. JONES, Judge

______________________________ THOMAS T. WOODALL, Judge