### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 6, 2002

STATE OF TENN ESSEE v. WILLIE NATHA NIEL SMITH

Appeal from the Circuit Court for Tipton County Nos. 4149, 4251 Joseph H. Walker, III, Judge

No. W2001-02973-CCA-R3-CD - January 9, 2003

The defenda

nt, Willie Na

thaniel Smi

th, appea ls as o f right his conviction by a jury in the Tipton County Circuit Court of delivery of .5 grams or more of cocaine, a Class B felony , and his resulting fifteen-y ear

sentence. He also appeals the concurrent fifteen-y

ear sentenc es rece

ived follo wing his guilty pleas to two additional counts of delivery of .5 grams or

more of cocaine. He contends (1) the evidence is insuffi cient to su pport his convicti on incase num ber 4149 ; (2) the t

rial cou rt erron eously alloweda police

investig ator to te sti fy about wha t he hear d on a rec ording d

evice; a nd (3) his sentences in both cases are excessive. We affirm the judg ments of conviction.

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

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined.

Gary F. Antrican, District Public Defender, Somer ville, Tennessee, and Jeffery L. Stimpson, Munford, Tennessee, for the appellant, Willie Nathaniel Smith.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Bouc ek, Assistant Attorney Genera l; E lizabeth T. Rice, D istrict At

torney Genera l; and Kim E . Linville, Assis tant Distr ic t Attorne y General, for the appellee, State of Te nnessee.

OPINION

Casenumber 41 49 arise s out of a p olice informant’s controlled purchase of cra ck cocaine from the defe ndant. At trial, Au brey Blackw ood testif

ied that in July 2000, he quit his crack cocaine habit and beg an worki ng for t

he drug task force t hrough Inve stigato

r Randall Robbins, whom he had known for

twenty y ears. He said that he usually received $60 per transaction but that he was paid

even if he did not make the purchase. He said that on Aug ust 23, 2000, he discussedthe price of an eight ball of crack cocaine with the defe ndant in a house

in front o f Mr. Bla

ckwood’ s father ’s auto repair shop. After th

e defendant lef

t, he tele phoned I nvestig ator Robb ins and tol d him the price was $170. He met Investigator Robbins around 7:00 p.m., and they talked about the job. Investiga tor-2-

Robbins searched Mr. Blackwood and his truck, placed a body wire on Mr. Blackwood, and ga ve him money. Mr. Bla

ckwood said that

he did not have any

of his own mo ney with h im th at even ing. From the meeting spot, Inve stigator Robbins followed him to the entrance to Maclin Road.

Mr. Blackwood testified that when he arrived a t the defendant’s ho us e, Tim Powell was leaving in a black

Chevrolet truck. He said that the defendant let him in and that Joseph Rivers and a woman named

Victoria or Torey

were there. He said that the defendant was smoking marijuana and looking d

own his ro ad with

binoculars. He said that the defendant said he did not have the amount the

y ha d discusse d but had o nly

five roc ks. He sa id that the te

levision w as play

ing loudl y and that he asked the defendant about the size of the rocks. He said that the defenda

nt showed

him the smallest rock, which was tied in the corner of a clea r plastic bag. He said the other rocks were wrapped in aluminum foil. He said that the defendant priced the rocks at $100 but agreed to take $80 for them. He said that after he bought the five rocks for $80, the defendant asked him how much money he had. He said that he counted out $90 and that the defendant told him to return in fifteen minutes when the defendant would produce the eig ht ball and give him a better deal. He said that Joseph Rivers wa s sitting a t the def endant’ s kitchen

table smoking and that he joked with Mr. Rivers. He said that the defendant, who seemed worried, asked whether a grey and maroon Bronco that had been seen in the area

belong ed to the police. Mr. Blackwood said he thought that the defendant was refer ring to Investigator Robbins’ ca r and he tried to throw the defendant off by saying he

had not

seen the Bronco. H e said that before he left, he told the defenda nt that he would be back for the eight ba ll.

Mr. Blackwood testified that he drove back to the mee ting place a

nd that Inve stigator Robbins followed him. He said that he gave I nvestigator Robbins the rocks and the money and that the investig ator sea

rched him and his truck. He said he did not return to the defendant’s house for the eight ball. He said that he had listened to the audiotape recording of the transaction and that

it
accurat ely portr ayed the ev ents o f that eveni ng. He said he did not buy drug s from or give money to Mr. Rivers or Victoria.

On cross-examination, Mr. Blackwood testified that he had smoked crac k for one year a

nd had last smoke d crack

in July 2000. He admitted being convicted in January or February

2001 of theft of property va

lued over $1000 and theft of propert y valued over

$500. He said that he was charged with these offenses before he worke d for the drug task force but tha t he decl

ined the t ask force’s offer

to help him with these charges. He said he also had a

drug c onviction

in 1988. He

said he had known the defendant, who lived within one-quarter of a mile fr om his father’s shop, for about

one and one-half y ears. He agreed that he and the defendant were fr iends and said that the defendant ha d bought car parts from him and had hired him as a mec hanic in the past. He bel ieved th e defendant had been satisfied with the parts and said that he had replaced parts that the defe ndant said would not work. He said he and the defendant usually traded car

parts for crack cocaine. He denied arguing with

the defe ndant abo ut him not re

funding the defe ndant’s m oney when a pa

rt would not work or about h

im taking apart a car for the defe ndant and being u nable to f ix it. He said

that desp ite their disagreements about defective pa rts, they continue d to do busines s with eac h other. He said he had been to the defendant’s house many times but denied ever smoking crack there or elsewhere-3-

withthe defendant. He said that he had never loa ned the defendant money

but that the defendant had allowedhim to ma

ke a purchase on credit a few times. He a greed that a crack a

ddict would do anything, inc luding lie and steal, to get crack.

Inve st i gator

Randall Robbins of the Tipton County Sheriff’s Depar tment testified that he workedon the drug tas k f orce as a narcotics investigator. He said that he used paid confidential informan ts from all walks of life on a daily ba sis. He said that in August 2000, he was using Aubrey Blackwood

as an informant. He said Mr. Blackwood ca lled him around 1:00 or 2:00 p.m. to tell him that Mr. Blackwood had arrang ed to buy an eig ht ball that night

from the defendant, who lived on Maclin Road. He sai d that he and Agent M ike Ro se met Mr. Bl ackwoo d that eveni ng on a fiel d road, that they discussed the location of the drug sale, and that he searched Mr. Blackwood’ s person and truck, finding no money or illegal drugs. He said that he g ave Mr. Blackwood $170, for which he had recorded the serial numbers, and placed a body wire on him. He said that in order f

or th e recorder to work, he had

to remain within one to one-half mile from the informant, depending on the weather and the terrain . He said

that maint

aining v isual con tact with the infor mant was d

ifficult in

a rural c ounty

because the area is open and most people know him a nd his v ehicles. He said he typically monitored the informant visually as best he could and tried to stay hidden.

Investigator

Robbins t estified t hat they followed M r. Bl ackwoo d to Maclin Road and

re m ainedon Bud Eubanks Road, watching Mr. Blac kwood’s taillights continuing in the direction of the defendant’s house. He said he could not see the de fendant ’s hous e but could see the front porch light. He

said that t hrough the rec ording d

evice, h e heard Mr. Blac kwood app

roach th e house and speak to an African-America n male. He said he heard Mr. Blackw ood knock on the door and speak to another African-American male . He said a television was playing

in the background. He said that he heard

Mr. Blackwood have a conversa tion with one o

r two peo ple in the house. He

said he heard Mr. Blackwood discussing a transaction involving a n eight ball and another person answer that he did not have that much right now. He said he heard a discussion about what the person had and heard Mr. Blac kwood say , “You dr

opped one .” He sa

id the person questioned Mr. Blackwood about Inv es ti ga to r R ob bi ns ’ m ar oo n a nd gr ey Bronc o, saying tha t the person believed the police were in the are a. He sa

id th at he heard Mr. B lackwood count out $90 and that the person told Mr. Blackwood

to come ba

ck later for the r est. He said he heard Mr. Blackwood lea ve and then state for their benefit that

he was leaving the area. He said that shortly therea fter, he saw Mr. Blackwood turn on his hea

dlights.

The state played the a

udiotape of the transaction for t he jury. The audi otape co ntains a partiall y inaudible conversation between Mr. Blackwood a nd at least one other male. On the tape, Mr. Blackwood asks theperson if he has “a good eig ht.” The other person eventually states that he has “five.” Mr. Blackwood and the per son discuss a red and grey Blazer that the person has seen in the area and believes is associated with the police. Mr. B lackwood denies seeingit. In negotiating the price f

or th e “five,” Mr. Blackwood seeks assura nce that they a

re not “real small or nothing.” The person states that he has only one that is “real small” and indicates that he is showing it to Mr. Blackwood. Mr. Blackw oo d points out that the person has dropped one as the person is counting outthe five. Mr. Blackwood confirms that the price is $80. The person states either that he had or-4-

will have “the rest of that, . . . a ball,” an d Mr. Blac kwood ask s how much more the person w ill charge. The person asks how much m ore Mr. B lackwoo d wants to spend, and Mr. Blackwood states that he ha s $90 left. He and Mr . Black wood discuss Mr. B lackwoo d return ing in ab out fifte en to twenty minutes.

Investigator

Ro bbins test

ified that after the transaction, he and Ag ent Rose followed Mr. Blackwood

back to the meeting place and that Mr. B lackwood gave him four rock-like substanc es wrapped in aluminum foil, one wrapped in clear plastic, and $9 0 . He said that he field tested the substanc es, which tested positive for cocaine. He said that a roc k or pea-sized piece of crack coc aine sells for about $20. He said that an eight ball, which is one-eig hth of an oun ce of cocaine, cos ts between $150 and $250.

On cross-e

xamination, Inve stigato

r Robbins te stified th at he could not see the people who

were talking

during t he drug transacti on and could identify only Mr. Blackwood’s voice on the

a udiotape. He sa id that when a car would come, he would drive to the nea rest driveway

and turn around. He said th at these movement s accoun

ted for th e stati c on the audiot ape of the drug transaction. He co

uld no t iden

tify a pho togr

aph o f the

defe ndan t’s ho use, exp laining that he had been there only once

at night. He said that when Mr. Blackwood first came to him, Mr. Blackwood said he did not w ant to be paid but o nly to stop using drug s. He said that he had never required in formants t o take drug screens and that he insisted that Mr. B lackwood be paid. He said Mr. Blackw ood did not t

ell him abo

ut his rela tionship with the def

endant.

Special Agent Dana

Clement Rose of the TennesseeBureau of I nvestigation (TBI ) testified that she identified a substancesent to her by I nvestigator Robbins as 1.2 grams of cocaine . She acknowledged that she did not know from whom the drug s were taken.

Joseph Rivers testified tha t he had known the defendant for twenty years a nd that the defendant was like family to him. He said he ha d never seen t

h e defendant smoke or sell crack cocaine. He said the defendant supported himself by picking up cans, dealing in scrap a nd junk, and helping Mr. Rivers work on cars. He said he ha d known Au

brey Blackw ood for a

bout five ye ars, had bought car parts from Mr. Blac kwood and his fa ther, and had wo rked as a mechanic for Mr. Blackwood’s father. Mr. Rivers stated that he had repaired cars after Mr. B lackwood failed to repai r themproperly a

nd had bought defective parts from Mr. B lackwood. He said he had to go to Mr. Blackwood’s fa th er to ge t h is mo ne y ba ck for the defective parts. He said that he would not

c hara cter ize the defendant and Mr. Blackwood as f riends and that he had known them to hav e conflic ts. He said he had seen Mr. Blackwood smoke crack c ocaine c ountless times, inclu ding in the defendant’s driveway , and last saw him smoking crack at Mr. Blackwood’s home in March 2001. He said he could not

recall whe ther he was at the defendant’s house on Aug ust 23, 2000. Based upon this evidence, the jury convicted the defendant of delivery of .5 grams or more of cocaine

.

On Novembe

r 6, 2001, the defe

ndant ple d gu ilty in case number 4251 to two counts of delivery of .5 grams or more of cocaine
, agreeing to allow the trial court to determine the sentence. A codefendant, Victoria Alicia Teran, w ho lived with the defen dant on Macl in La ne, was a lso-5-

indicted for the delivery of c ocaine in that case. At the submission hearing, the state presented the following factual basis for theconvicti ons: For the f irst offe nse, whic h was alle ged in c ount one to have occurred on September 13, 2000, Mr. B lackwood was wired with a recording device and the drug transaction was rec orded. T he audiot ape rev ealed th

e codef endant c ounting o

ut eight rocks. The laboratory

analysis showed the e

ight rocks to be 1.7 grams of crack coc aine. Mr. Blackwood and drug task force officer s would testify that the defe ndant was involved in delivering the eight rocks for $120. For the second offense, which w a s alleged i n count three to have occurred on February 1, 2001, Mr . Black

wood woul d testify and the audiotape and drug task force

office rs would corrobo rate that the defendant showed Mr. Blackwood a rock and measured it. The laboratory analy sis reveal ed this sub stance t o be 1.4 grams of crack coc aine. Mr. Blackwood would testify that “$150 was transferred in an hand-to-hand transaction.” The defendant stipulated that a fa ctual ba sis existed for the g

uilty pleas. At a joint

sentencing hearing, the trial c ourt sentenced the defendant as

a Range II , multiple offender to fifteen years in the Department of Correction (DOC) on each of the th re e c on vi ct io ns , a ll to ru n c on cu rr en tl y.

I. SUFFICIENCY

The defendant contends that the evidence is insufficient to suppor t his convi ction in c ase number 4149 because it rests upon the testimony of a paid informant, who was not credible. He

ar gues that Mr. Blackwood, the only person to link him to the drug transaction, had two theft convic tions and admitted that an addict would lie to get crack. He points out that although Mr. Blackwood testified that he had stopped using cra ck in July 2000, Mr. Rivers testified that he saw Mr. Blackwood use crack in March 2001. T he state contends that the evidence is sufficient

. We agree with the state.

Our standar d of revi ew when

th e sufficiency

of the ev

idence i s questioned on app eal is “whether, after viewing

the evide nce in the light most

favorable to the prosecution, any rational trier of fact could havefound the essential elements of the crime bey ond a reasonable doubt.” Jackson

v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume that the ju

ry has reso lved all

conflicts in the testimony and drawn a ll reasonable inferences from the evidence in favor of

the state. See Statev. Sheffi eld , 676 S.W.2d 542, 547 (Tenn. 1984); Statev. Cab bag e , 571 S.W.2d 832, 835 (Tenn. 1978). Any questions about the cr edibility of the witnesses were resolved by the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

The knowing

deliver y of .5 gra ms or mo re of

co ca in e i s a Cl as s B fe lo ny. Tenn. Code Ann. § 35-17-41 7(a)(2 ), (c)( 1); see also Tenn. Cod e Ann. § 39 -17-408(

b)(4) ( categ orizing c ocaine a nd its derivat iv es as a Schedule II

drug). Viewing the evidenc e in the light most favorable to the stat e , Aubrey Blackwood testified that the defendant gave h im five ro cks of cr

ack coc aine in

exchange for $80. The transaction was recorded, and the audible portions of audiotape corrobor at e Mr. Blackwood’s testimony about the numbe r of rocksand the pu

rchase price. I nvestig ator Rand all Robbins testified that following the controlled drug sale, Mr. Blackw ood gav e him five rocks, which field tested positive for cocaine. Special Agent Dana Clement Rose testified that she identified the substance from Investigator Robbins as 1.2 g rams of cocaine. The evidence is sufficient to support-6-

the defenda

nt’s conviction. Th

e defendant’s a

rgumen ts rela te to Mr. Blackwood’s credibility , a matter reserv ed for the tr

ier of fa ct and not this court. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

II. ADMISSIBILITY OF INVESTIGATOR ROBBINS’ TESTIMONY

The defendant contends that the trial court should not have allowed I nvestigator Robbins to testify about wha

t he heard on the recording de vice during the drug transaction. He argues that Investigator

Robbins’ testimonywas not the best evidence of the transaction because the audiotape

was available. He also contends that Investiga tor Robbins’ testimonyconstituted hearsay and was speculative because he could not see the house or identify the voices on the audiotape. He argues that Investigator Robbins’ testimony about what

he heard during the drug tr ansaction influenced the jury to anticip ate a dr

ug tran saction b efore t

hey heard th e audiota pe. The s tate ag

rees th at th e audiotape was the best evide nceof the tra nsaction but conte nds that I nvestig ator Robb ins was me rely laying a foundation for the introduction of the audiotape. I t arg ues that I

nvestig ator Robb ins’
testimony was not speculative because he heard the c onversation as it occurred through the microphone worn by

Mr. Blackwood and could identify Mr. Blackwood’s voice.

The best evidence rule ex tends to audiotaped recordings: “To prove the c ontent of . . . record in g . . ., the o

rigina l . . . rec ording . . . is requ ired” un less an evidentia

ry rule or a statute provides otherwise. Tenn. R. Evid. 1002. In the prese nt case, the state presented the original audiotape of the transaction and, thus, the best evidence r ule was not offended.

[T]ape recordings and

compared transcripts are admissible and may be presented in evidence by any witness who

was present

during t heir recording or who monitored the conversations, if he was so situated and circumstanced

that he was in a position to identify the dec larant withcertainty, a

nd prov ided his testimo ny in whole, o r in part, comports with other rules of evidence.

Statev. Jones , 598 S.W.2d 209, 223 (Ten n. 1980), sup erceded on other ground s by

statute Tenn. Code Ann. § 39-11-505. Aubrey Blackwood, a participant in the recorded conversation, authenticated

the audiotape by te stifying that he ha d listened to it and tha

t it accur ately presented the conversation betwee

n himself a

nd the def

endant. He identi fied the defe ndant as t he perso n with whom he conducted the recorded drug transaction.

Hearsay is a statement made out of cou rt and o ffered “to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). Typ ically , testimony by a monitoring officer about a recor ded conversation that he overhears does not raise hearsay concerns: Theofficer can identify the parties to whom he was listening. See Jones , 598 S.W.2d at 223. The statem ents of the defe ndant fa ll within a hearsay exception for admissions by a party -opponent. Tenn. R. Evid. 803 (1.2). Also, the
statemen ts of the cooperating pa

rty –in this case the police informant, Mr. Blackwood–a re not offered for their truth. See Tenn. R. Evid. 801 (c), 802 ; see, e. g. , Jones , 598 S.W.2d at 223 (concluding that1 We note that t he state f

ailed to fi le a brief i n case num ber 4251. Nev erthele ss, we b elieve th e reco rd is suff icie nt f or us t o address t

he defendant ’s s entenci ng conten tions in t hat cas e.

-7- the statements of the undercover ally of the state were not offered for their truth–in fact, many

of the statements were admittedly false–but only to bring

the defendant’s statements before the jury ).

In the p rese nt case, Investiga tor Robbins contemporaneously monitored the r ecorded conversation. The def

endant a rgues t hat I nvestig ator Ro bbins’ testimony about what he hea rd on the audiotape is imprope r becau se he could not identif y the voiceson the aud

iotape. H e also contends that Investigator Robbins’ testimony about the actions of the people speaking on the tape was speculative because he could not see what was happening. Initially , we note that Investiga tor Robbins aurally witnessed the transaction and could p rop erly testify about wha

t he hear d people doin g. Additionally, we believe that he could properly

testify to the stat ements of the unkno wn party to the drug transaction because Mr. B lackwood identified this person as the defendant. Thus, Mr. Blackwood’s testimony

establish ed the pr edicate for the admissibility of the statements of the other party to the drug transaction, i.e., that the person was the defendant, a party -opponent. Finally, the defendant was not harmed in light of Mr. Blackwood’s detailed testimony about the transaction and the fact that the jury

listened to the audiotape.

III. SENTENCING

The defendant contends that his sentence in case number 4149 is excessive considering the nature of the offense for which he was convicted. With regard to case number 4251, he arg ues that the trial court should have applied the state’s failure to supervise him proper ly when he wa s previous ly

on probation as a mitigating factor and imposed the minimum twelve-yea r sentence. He also challenges the

manner of service of his sentence, ar guing that the trial court

should have placed him on co mmunity co rrections. The state contends that the trial court properly sentenced the defenda nt. 1 We affir

m the sente

nces impo sed by

the trial court.

The present

e nc e report reflects that the twenty -nine-ye ar-old defendant attended school throu gh the ten th grade

before leaving for disc iplinary

reasons . It shows him to be engag ed to Victoria Teran, his codefendant in case number 4251, and the father of two children. The defenda nt reported no mental

health pr oblems but said

that he had been diagnosed with tuberculosis and had chest pain. He reported

working for Discount Beeper s from January 31 through October 15, 1999, but leaving this position for health reasons. He stated that he was in the hosp ital for o ne month in October and November 1999. He related that he beg an using alcohol and drugs at age sixteen and that he used alcohol, cocaine, and “wee d” daily. The r epo rt reve als t hat between June 1995 and January 1996, the defendant had attended two substance abuse programs, a treatment pro gr am entitled Commitment to Change, and an anger management program. He completed only the ang er management program.

The presentence reportreveals that the defendant was convicted of robbery in 1992 a

nd received a six-year sentenc e. It shows that he was convicte d of three counts of

drug offenses relating2 The legislature ’s 200 2 am end men t to Tenn. Code Ann. § 40-35- 114 added as the new en hance ment factor (1)

that t he “offense was an ac t of terro rism” b ut chan ged the existing enhan cem ent facto rs only in inc reasing their designating number by one. Thus, f ormer enhance ment fact or (1) relat ing t o the def

endant’ s his tory of

crimi nal convictions or behavior is now enhancement factor (2).

-8- to cocaine in 1994 and received a n effe ctive eight-year sentence. At the sentencing hearing, the defendant disputed that he had three felony drug convictions, arguing that he believed one had been dismissed or was a count charging a codefendant. He

noted that the state’s notice of intent to seek enhanced punishment only listed two prior convictions for delivery of a controlled substance. The report also reveals that the defendant had misdemeanor c onvictions for poss essin g a

firearm where alcohol is served, resisting arrest, simple assault, driving on a revoked license, and

evading arrest. Ad di ti on al ly, he has two traffic-related c onviction s f or speeding. The report reve als that he was paroledfrom his robbery c onviction on August 4, 1992, but that his parol e was re voked on September 24, 1996.

Another report p repare d by

Correct ions Managemen

t Corpora tion conta ins much of

the same informat io n but also reflects that the defendant reported wor king for a temporary

service for an unspecified

time period. The defendant stated tha t he was self-employ ed as a mechanic and y ard worker. He reported last using cocaine a nd alcohol in February

2001 and last using marijuana on August 3, 2001. This report states that the defendant’s three 1 994 drug convictions were for possession of a Schedule II substance.

At the sentencing hearing, the tria l court relied upon two of the de fendant’s four felony convictions to establish that he was a Range I I, multiple offender. See

Tenn. Cod e Ann. § 40- 35- 106(a)(1). It en

hanced the sente nces bas e d u pon the defendant’s history of criminal convictions beyond those establishing him as a Range I I, multiple offender. See Tenn. Code Ann. § 40-35-114(1) (Supp. 2001) (amended 2002). 2 It also found tha t the defendant

had a hist

ory of unwilli ngness to comply with the conditions of release i nto the co mmunity. See Tenn. Code Ann. § 40-35-114(8) (Supp. 2001) (amended

2002). It applied factor (13) , finding that the defendant was on probation at the time he committed the present offenses but did not give this factor much we ight because the probation was unsupervi sed

. See Tenn. Code Ann. § 40-35-114(13)(C) (Supp. 2001) (amended 2002). The trial court

applied mitigating factor (1), that the offense “neither caused nor threatened serious bodily

injury ,” to all t

hree conv ictions. See Tenn. Code Ann. § 40-35-113(1). The court balanced these fa ctors an d imposed a

fifteen -y ear sent ence for each conviction. Although it found that the defendant’s sentenc es could b e run con secutive ly, it conclu ded that s uch a sen tence w ould be excessive for these offenses. I t found that the defenda

nt was ine

ligible for probation, see Tenn. Code Ann. § 40-35-303(a), and that this was not a proper ca se for community cor rections considering the defendant’s prior hist ory of crim inal c onvi ction s, in cludi ng a conviction for robbery
, see Tenn. Code Ann. § 40-36-106.

Appellat e review o f sentencing is de novo on t he reco rd wit h a presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing Commission Comments to this sec tion note, the burde n is now on t

he defe ndant to show th at the sentence is-9-

improper. This means that if the trial court followed the statutory sentencing procedure, made findi ngs of fact that are adequately supported in the record, and gave due consideration and prope r weight to the factors and

principles that are relevant to sentencing under the 1989 Sentencing Act, we may not disturb the sentence even if a different result were pref erred. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

However, “the presumption of correctness which acc ompanies the trial cou rt’ s action is conditioned upon the affirmative showing in the record that the tria l court considered thesentencing principles and all relevant facts and circumstance s.” State v. As hby , 823 S. W.2d 166, 169 (Tenn. 1991). In this respect, for the pur pose of meaningful appellate review
,
the trial court must place on the record its r easons for arriving at the final sentenc ing dec ision, ide ntify th e mitigating and enhancement factors found, sta

te the specific fa

cts support ing each enhancement factor found , and a rticu late h ow the miti ga ting an d enhancement factors have been evaluated and balanc ed in determining thesentence. T.C.A. § 40-35-210(f) (1990).

State v. Jones , 883 S.W.2d 597, 599 (Tenn. 1994)

. Also, in conducting a de novo review, we must consider (1) the evidence , if any, received at the trial an d sentencing hearing, (2) the presentence report, (3) the princ iples of sentencing and argume nts as to sentenc ing alte

rnative s, (4) the

nature a nd chara cteristi cs of the

criminal conduct, (5) any mitigating or statutory

enhancement factors, (6) any statement that the defendant made on his own behalf, and (7) the potential for r ehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see Ashby , 823 S.W.2d a t 168; State v. Mo ss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentenc e to be impose d by the trial court is p resumptiv ely

the minimum in the range for

a Cla ss B felony unle ss there are enhancement factors present. Tenn. Code Ann. § 40-35-210(c). Pr oc ed ur al ly, the trial

court is to

increa se the sentence within the range based upon the existence of enhancement

factors and, then , reduce

the sente nce as a ppropria te for any mitig ating factors. Tenn. Code Ann. § 40-35-210(d)-(e). The weig ht to be afforded an existing factor is left to the trial court’s discretion so long as it complie s with the purposes a nd princi ples of the 1989 Sen

tencing Act and it s f indi ngs are adequately

supported by the record. Tenn. Code Ann. § 40-35-210 , Sentenc in g Commission Cm

ts.; Moss , 727 S.W.2d a

t 237; see Ashby , 823 S.W.2d at 169.

In case num

ber 4149 , the def

endant a rgues t hat h is sen tence is excessive considering the
nature of the offense for which he was convicted. He does not challenge the trial court’ s application of enhancing or mitigating fa ctors but does indicate in his argument that his relative youth and the f act that he has a y oung ch ild should mi

tigate his sentenc e. A tria

l court ma y c onsider a

defenda nt’s y outh in mitigati on of the s entence if beca use of hisor her youth the de fendant “lacked

substantial judgment in committing the offense.” Tenn. Code Ann. § 40-35-113(6). The record be lies the application of this factor. The defendant has a leng thy history

of criminal convictions, b eg inning with his conviction-10-

for robbery a tage twenty . Furthermore, Mr. Blackwood testified that he had purchased or traded for crack cocaine from the defendant in the past, which indica tes that the defendant had been dealing drugs for some

time. The

defenda nt’s crim inal histor

y, w hich span s nine of h

is twenty-nine y

ears, does not indicate that his youth deprived him of substantial judgment in committing the pr e sent offense s.

Si mi la rl y, we areskeptica l of the de

fendant ’s argument tha

t he “now has a y oung ch ildand

a reason t o live a str

aight li fe.” The prese

ntence r eport sta tes that th e defendant has a

ten-y ear-ol d daughter and a son for whom no age is disclosed. The record reflects that his daughter w as born within approximately one y

ear of his 1992 robbery

conviction. These facts along with the history of criminal convictions and behavior following the 1992 robbery conviction reveal that the defendant has not chosen to abandon his criminal conduct because of his re sponsibility as a father.

The defendant also indicates that the trial court improperly we

ighed enhancement

factor (1) by arguing that his only

violent offense occurred in 1992 and he w as likely under the influenc e of drugs while committing all of his non-drug-related o ffenses. As noted above, when the rec ord supports the application of an enhancement factor, the weight to be given that factor rests within the trial court’s discretion. T he record c learly shows tha

t the def endant ha d crimina l convict ions in

excess of those needed to establish his rang e and sup

ports the defendant’s fifteen-y ear sentence.

With regard to case number 4251, the de fendant co ntend s that he was not afforded proper supervision du ring his p revious p robation . He arg

ues that s upervise d probati on is espe cially importantfor defendants convicted of drug -related offenses in order to det er additional criminal

ac ti vi ty. He arg

ues that th

e trial c ourt shoul d have c onsidere d this in mitigation of his sentence, which he asser

ts should be the presumptive, twelve-y ear minimum for these convictions. The trial
court found that the defendant had been placed o n unsuper

vised pro bation fo r his eight-y ear sentences for the 1994 drug offense s. It applied enhanceme nt factor (8) because the defe ndant was still serving this probationary te

rm at the time he committ ed the pr esent of fenses. Howeve

r, it chos e to give

this factor little weight because the probation was unsupervised. Thus, we b elieve th at the tri al court did take into account the fact

that the defendant’s probation was unsupervised. I n light of the defendant’s extensive history of criminal convictions, the record supports the fifteen-y ear sentences imposed by the trial court.

The defenda

nt als o contend s that the tr ial cour t should ha

ve sente nced him t

o community corrections because of the len gth of ti me between his robbery conviction and the present offense. Only persons conv icted of n onviolent felony offe nses not involving a weapon and “who do not demonstrate a present

or past pattern of behavior indicating violence” nor “a pattern of committing violentoffense s” are e

ligible f or commun

ity c orrect

io ns. Tenn. Code Ann. § 35-40-106(a)(3)-(6). Even if a defendant’s prior felony convictions do not constitute a pattern of violence, the trial court retains discretion to exclude a defendant from a community corrections program based upon his or her prior felony c onvictions. See Tenn. Code Ann. § 40-35-106(b). In the pre sent case, the trial court deniedcommunity corrections based upon the defendant’s 1992 conviction for robbery . It also noted that although the present convictions were for drug-re lated offenses, it did not

“feel that it’s a proper-11-

case to try the

defendant on alternate sentencing due to the prior convictions that the defendant has and the record that the defendant has.”

We notethat eve

n if a def endant meets the min

imum elig ibility

require ments for commu

nity

corrections, he or she is no t au tomatically entitled to a community corrections sentence. See State

v. Tay lor , 744 S.W .2d 919, 922 (Tenn. Crim. App. 1987). A sentence of confinement should be basedon the need to prote ct socie ty by restrai ning a defenda

nt with a lo ng histor

y of criminal conduct, to avoid depreciating the seriousness of t he offe nse, or to

deter effectiv ely

others wh

o are lik ely to commit similar of

fenses. Tenn. Code Ann. § 40-35-1 03(1)(A )-(C); see Ashby , 823 S.W.2d at 169. Furthermore, the defendant ’s po tenti al for reh abilitatio n or la ck th ereo f sho uld be

examined wh en determining whether an alternative sentence is appr opriate. T enn. Co de Ann. § 40-35-103(5). The evidence does not pr

eponder ate ag ainst the t

rial cou rt’s f indi ng t hat the defendant’s history of convictions required a

sentence of confinement. We also note that the defenda nt’s admitted daily

use of cocaine constitute s crimina

l conduct

. The defendant’s parole violation, the fact that he c ommitted the instant of

fenses w hile on probation, and his continued abuse and distributi on of coc aine des pite prior co nv ic ti on s f or de li ve ry o f c oc ai ne re fl ec t p oo rl y u pon h is amenability to rehabilitation. The trial court properly

imposed a sentence of incarcera tion.

Based upon the foregoing and the record as a whole, we affir m the judgments of conviction.

___________________________________ JOSEPH M. TIPTON, JUDGE