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

Brief Ja nuary 8, 20 02
STATE OF TENN ESSEE v. WINFRED LEE FAULCON
Direct Appeal from the Circuit Court for D yer County Nos. C00-384, C00-385 Lee Moore, Judge

No. W2001-01153-CCA-R3-CD - Filed February 26, 2002

The App ellant, Winfred Lee Fa ulcon, was convicted after a trial by jury of two offe

nses of possession of a Schedule VI c ontrolled sub stance, marijuana, with intent to sell, which stemmed from events that occurred on October 21 st and November 1 6 th of 20 00. Faulcon received two consecutive eighteen-month commun ity cor rections sentences with nine months of continuous confine ment in the county jail. On appe al, Faulcon raises the following issues for our r eview: (1) whether the State’s action of releasinga witness which the State had subpoenaed for trial constituted misconduct

when the witness th

ereaf ter bec ame unav ailable t

o the defense; (2) whether the evidence
was sufficient to support his convictions; (3) whether thetwo charges aga inst Faulcon should have been consider

ed as one

continuin g crimin al e nterprise an d thus, would have resulted in the imposition of only one sentence; (4) whe ther the trial cou rt erre d in imposing

a sentence in exce ss of the minimum necessary f or class E felonies; and (5) whether the trial court erred

in not imposing
an alternative non-incarcerative sente nce for the entire

period. After a review of the record, we find that Faulcon’s issues are without merit. Accordingly , the judgment of the Dyer

County Circuit Court is affirmed.
Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt is Af

firmed.

D AVID G. H AYES , J., delivered the opinion of the court, in which J OHN E VERETT W ILL IAMS , J. and A LAN E. G LENN , J., joined.
Charles S. Kelly, Jr., Dyersburg, Tennessee, for the Appe llant, Winfred Lee Faulcon.

Paul G. Summers , Atto rney Genera l and Repo rter; Mic hael Moor

e, Solicito

r Gener al; Kim R. Helper, Assistant Attorney General; C. Phillip Bivens, District Attorney General, for the Appellee, State of Tennessee.

OPINION-2- Factual Ba

ckground

On October 21, 2000, Officer James Fogarty responde d to a911 call a t 1500 Maxi e Drive in Dyersburg, Tennessee. Upon arriving at the residence, Brenda Adams “explained that she was assaulted by her boyfriend, Mr. Faulcon, and that he had just left the scene in a black Cadillac. ” Officer Fogarty conveyed the information he had receive d from Adams to Offi c ers Peckenpaugh and Jowers, who where en route to th e Maxie r esidenc e. Ther

eafter , Office

r Fogarty escorte d Adams “ to the police department to allow her to sign a warrant aga inst Mr. Faulcon.”

As ad vised by Officer Fogarty, Officers Pecke npaugh and Jowers began to look for th e Appellant in the Meeks Street area, the loca tion of an apartme nt belonging to the A

ppellant ’s aunt. The Appellant was located at the Meeks Street address , and plac ed under arrest f or domest ic assault. Upon placing the Appellant under arrest, a search w as conducted of theAppellan t’s perso n. A small metal scale, 81.2 grams of marijuana, rolling papers, a page r , and some money were found in the Appellant’s pockets. T he Appellant was later released from jail and orde red not to return to the Maxie address.

On November 16, 2000, Inv estigator Jim Joyner received information from a confidential informant that the Appellant was in possession of a large quantity o f marijua na locat ed at the Maxie address , and that the Appellant lived at that locationwith Adams. Investigator Joyner also testified that Investigator Billy Williams had advised him that the Appellant was living with Adams at 1500 Maxie, and that

Investig ator Will

iams “ha d recei ved a ca

ll the day before, which would have been November

15 th , that [the Appellant] was in a local business trying to purchase a postal scale.” Based upon this information, a search warrant was obtained a nd executed upon the residence. Adams and Anthony Cole were present at the home when the office rs arriv ed; however, the

Appellan t was not. The Appellan

t was loca ted and a sked to co me to the Ma xie resid ence. A fter the Appellan t’s arri val, the residence and the Appellant’s vehicle were sear ched. Found in the residence was a postal scale, sandwich bags, two pistols, and a large quantity of marijuana. Marijuana was also discovered in the Appellant’s vehicle. The marijuana seized fr om the residence and vehicle totaled 548.8 grams.

On December 11, 2000, a Dyer County grand jury re turned two indictments ag ainst th e Appellant chargin g him

with possession of marijuana in excess of one-half ounce with intent to sell, basedupon the October

21st and November 16 th episodes. The indictments were consolidated for trial. After a

trial by ju

ry on Febr

uary 7, 2 001, the A

ppellant was convicted as cha

rged on b oth indictmen ts. The Appe

llant w as se ntenced to consecutive eighteen-month community correction sentences with nine months jail confinement. This timely appeal followed.-3- ANALYSIS
I. Subpoena of Brenda Adams The Appellan t firs t arguesthat “the trial cou rt erre d in refu sing to allo w DefendantAppellant’s cou nse l to call Brenda Adams as a witness, thereby tacitly approving the State’s misconduct

in subpoenaing her, then not calling her as a witness, and releasing her fr om subpoena in order to make her unavailable to defense counsel.” The Appellant asserts that the actions of the State, subpoenaing Brenda Adams but not putting her on the stand, “amounted to prosecutori a l misconduct and trickery.” Additionally,

the trial court’s refusa

l to allow d

efense counsel to call Brenda Adams to the stand, when he state d he was d

oing so, se

rved tocompound the misconduct of the district attorney ge n eral, to thwart defense counsel’s eff orts to ascertain the truth of the matters involved and present evidence, and to deprive the Defenda nt-Appellant of a fair tri al.

At trial, the Appellan t called B renda A dams as hi s f irst witnes s, whereupon the following colloquy commenced:

THE COURT: Where is Mr. Horner? GENERAL BIVENS: Your Honor, they’re not g oing to be back until 1:30. I had subpoenaed

Ms. Adams to use in r

ebuttal, and, to my knowledge, my subpoena is the only subpoena she’s here on. THE COURT: Mr. Kelly, you’re going to have to go with

something else right

now, because she’s got a right against incrimination – I mean, she’s charged as a defendant in this case , and if

you put he

r on right now – you c an put her

on after her lawy er gets here, okay? MR. KELLY: Yes, sir.

The Appellant never again attempted to call Brenda Adams to the stand. Apparent from the record, the trial court did not refuse to allow the Appellant to call Brenda Adams to the stand, but rather instructed defense

counsel t

o wait until Brenda Adams’ law yer arr ived. Furt

hermore , the State issued a subpoena for Brenda Adams, but the Appellant did not.

We first note that as argued by the State, the Appellant has waived re view of this issue by failing to raise a

n objecti on at tria

l. Tenn. R. App. P. 36(a). Nonetheless, there is nothing before us which indicates that the State hind ered or o bstructed the issuance of compulsory process for the attendance of the wit

ness in thiscase . The processof subpoe na was a vailable to the App ellant to compel the presenc e of Brenda Adams to give evidence r egardle ss of whether Adams was “claimed by the opposite party.” State v. Womack , 591 S.W.2d 437, 444 (Ten n. Crim. Ap

p. 1979). Clearly the Appellan

t was free to avai l himself of the statutory provisions of Tennessee Code Annotated § 40-17-107 (1997), whichpermits the issuance of subpoenas “for such witnesses as e ither the district attorney general or the defendant may require.” Accord ingly, we find this is sue to be without mer it.-4- II. Sufficiency of the Evidence The Appellant next contends that the evidence was insufficient to support the verdicts. A jury conviction removes the presumption of innocence with which a Def endant is cloaked and replaces it with one of guilt, so that on ap pe al, a convicted Defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the s u fficiency of the evidence, this court does not rew eigh or reevaluate the evidence. State v. Cabbage , 571 S.W.2 d 832, 835 (Tenn. 197 8). Likewise, it is no t the duty o f this court to revisit questions of

witness credibility on appeal, that function being within the province of the trier of fact. State v. Adkins , 786 S.W.2d 642 , 646 (Te nn. 1990) ; State v. Burlison , 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented at trial was so deficient that no reasonable trier of f act could have found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2 789 (1979 ); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State is entitled t

o the stron gest legit

imate view of the e

vidence and all reasonable inferences which may be drawn therefr

om. State v. H

arris , 839 S.W.2d 54, 75 (Tenn. 1992). In State v. Matthe ws , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990), this court held thes e rules ap

plicable to finding s of guilt predi cated u pon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.

It is a classE felony f

or a Def endant to knowingly

possess ma

rijuana in excess of one-h alf
ounce with intent to manufacture, deliver or sell such marijuan a. Tenn. Code Ann. § 39-17-417 (2001). We, in turn, examine the October 21 st and November 16 th offenses to determine whether the evidence was sufficient to convict the Appellant of two counts of posse ssion with intent to sell.
Regarding the October 21 st offense, the Appellant does not ch alle nge that he possessed marijuana in excess of one-half oun ce, but o nly that he did not knowingly intend to sell such marijuana. Upon searching the Appellant’s person incident to his arrest for domestic violence, the officers found 81.2 grams of marijuana, a small metal scale, rolling papers, a pager, and some money in his pocke

ts . The 81.2 gr ams was packaged in thirteen smaller bags. Endalin Adams, Brenda Adams’ daughter , testifie d at trial that “it w as lot of p eople

that came over, traffic, but not – I haven’t
never seen the ma

rijuana with my own eyes ight, but I seen ‘em exchange something for money.” Furthermore, the jury could infer from the amount of marijuana possessed by the Appellant, along withother re

levant f acts, tha t such wa s for the

purpose o f selling it or other wise dispe

nsing it. Tenn. Code Ann. § 39-17-419 (199 7). Based upon the foregoing , we conclude that the evidence was sufficient to find the App ellant guilty of posses sion with to intent sell an amoun

t of marij uana in excess of one-half ounce on October 21 , 2000. Regarding the November 16 th offense, the Appellant argues both that hedid not possess the 548.8 grams of

marijuan a discove

red in th e Ma xie residence and his vehicle, and that he did not knowingly

intend to s ell such ma

rijuana . The relevant iss ue is whe ther the Appellan t constru ctively possessed the marijuana found at 1500 Maxie Drive.

A crime may be established by circumstantial evidencealone. State v. Tharpe , 726 S.W.2d 89 6, 899 -900 (Te

nn. 1987) . Howeve

r, befor e an acc used may b e convic ted of a c riminal of

fense1 Th is proof was est abli shed by t he testim ony of In vestig ator Jim Joyner. At t rial , Invest

igator Joyner tes tif

ied that he rec eived infor mation from a confi denti al i nformant that the Appel lant

li ved at 1500 Maxie, a nd was in posses sion of a la rge quant

it y of mari

juana at that locat

ion. He als o testifi ed that I nvesti gator Bil ly Willi ams advised him that the Ap pell ant l ived at 15 00 M axie, a nd th at Inv estigato r W illiams had receiv ed a p hon e call on November 15 th , the day before the Appell ant’s arrest , “that [the Appell ant] was i n a local business tryi ng to purchase a post al sca le.”

Th ese state me nts are inad miss able hear say, a nd a re esse ntially th e on ly pro of w hich con nec ts the Appel lant after his arre st on October21 st to t he reside nce and the m arijua na. Th e S t at e a rg ue s t ha t t he t es t i mon y o f En da l i n Ad ams establ ishes thatthe A ppe llant retu rned to the r esi dence af ter his arre st and the refor e, al so connec ts the Appel lant to t he (con tinue d...)
-5- basedonly upon circumstantial evidence, the facts and circumstances “must beso strong and cogent
as to exclude every other

reasona ble hypoth

esis save the guilt of the defendant.” State v. Cr awford , 470 S.W.2d 610, 612 (Tenn. 1971). In otherwords, a conviction may not rest solely upon conjecture, guess, speculation, or a mere possibility. Tharpe, 726 S.W.2d at 900. Instead, a “web of guilt must be woven around the defendant from which he cannot escape

and from which facts and circums tances [the fact finder] could draw no other reasonable inference save the guilt of the defendant beyond a reasona ble doubt.” Crawford, 470 S.W.2d at 613 (emphasis added); see State v. Sexton , 917 S.W.2d 263, 265 (Tenn. Crim. App. 1995).

A c onviction

for posse ssion of a

controlled substanc e may be b ased upo n actual o r construc tive possession. State v. B rown , 823 S.W.2 d 576, 579 (Tenn. Crim. App. 199 1); Sta te v

. Cooper , 736 S.W.2d 125, 129 (Ten n. Crim . App. 198 7). Befo re a per son can b e found to constructivelypossess a

drug, it mu st first

appear that the person has the power and intention at any given time to exercise dom inion and control o ver the d rugs either dire ctly or thr ough othe

rs. Cooper, 736 S.W.2d at

129 (quoting State v. Williams , 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)).

We acknowledge that in reviewing a conviction for possession of a controlled substance, the dispositive question is not ownership or whether the accused had control over the place where the drugs were found; rather, the question is whether the accused had actual or constructive possession of the drugs themselves. Indeed, under a theory of constructive possession, physical presence or dominion over the drugs is not required. To the contrary, constructive possession only requires “ the power and inten t ion . . . to exercise dominion and control” over the drugs either directly or indirectly. Williams , 623 S.W.2d at 125. Obviously, proof that the accused had ownership or control over the property where contraba nd is kept may help resolve the question of constructive possession because it gives rise to an inference of know ledge and possession of the contraband. See State v. B rown , 915 S.W.2d 3, 7-8 (T enn. Crim. App. 1995 ); State v. Jackson , No. M1998-00035- CCA-R3-CD (Tenn. Crim. App. at Nashville, May 5, 2000). Nonetheless, it is not a pr

erequis ite for conviction.

The proof, in the light most favora b le to the Sta

te, esta blished th at the App ellant wa s in possession of 548.8 g

rams of marijuan a at 1500 Maxie Drive, and that the Appellant lived at that location with Adams. There was also evidence that the A ppellant had trie d to purchas e a posta l scale at a local business on Nov ember 15 , 2000. 1 Furthermore, a postal scale, sandwich bags, and two1 (.. .continued)

resi dence and the marijuana. However, we disagree. The testi mony o f Endalin Adams establ ishes that t he on l y t i me the Appel lant

was permit

ted t o ente r the Maxie res idence aft er hi s ar rest (on Oct. 21 st) wa s “to g et his clo thes an d his personal belo ngin gs.” N o ob jection to the st atements of Offi cer Joyner was made at t rial and the refor e, t

his infor mation

was pro perly con sidere d by the jur y. State v. Be nne tt, 549 S.W.2d 949, 950 (Tenn. 1977) (inadmissibl e hearsay evidence, adm itted without objection, may be considered b y the jury as if it were adm issibl e).

-6- pistols were fo

und during

the sear ch of the Maxie re sidence . From thes e facts , Endali n Ada ms testimony that a “lot of people that came over, . . . [and] I seen ‘e m exchange something for money,” and the inferenc e permitt e d by Tennessee Code Annotated § 39-17-419 (1997) conc erning the amount of marijuana, we fi nd suffic ie nt evidence to conclude that the premises were in the Appellant’s con tro l, and that he possessed the “power and intention to exercise dominion and control”over

the marijuana seized by the police duringthe search. Accordingly, we find the proof sufficient to establish that on November 16, 2000, the Appellant knowingly

possesse d marijua

na in excess of one-half ounce with the intent to sell.

III. One Co ntinuing Criminal Enter prise Third, the Appellant argues that “the two charges against the Defendant-Appellant, Winfred Lee Faulcon, should have been considered as one continuingcriminal enterprise and, therefore, not subject to two indict

ments and , theref

ore, mandatory se

ntences .” He co ntends tha t,

since the off

enses charged in the two cases involved here , C00-384 and C00-385,
o ccurred within twe

nty-six (2 6) days of

each oth er and in volved the

sa me allege d criminal activity, there should have been only one indictment involving this alleged criminal activity; however, the State of Tennessee issued two in dictments on the
samedate , December 11, 2000, by the same grand jury in order to have consecutive sentencing imposed in the event of conviction.
The trial court consolidated the two indictments for trial finding that,

these offenses were committed in a closely connected series of events and time and that there may be an impossibility o f avoiding introduction of evidence of one offense with respect to the other offens e and th at these offenses are based on a common scheme or plan and should be tried together.

The Appellan

t’s argument reli es upon the finding of

the trial court co nsolidating the two o ffense s. First, we are unable to agree that consolidation of the two of fenses for trial was proper because the offenses did not constitute parts of a common scheme or plan. The firs t offens e stemmed from a domestic assault and the second offense was char ged following execution of a search warr ant. See generall y Tenn. R. Cr

im. P. 8(b) ; State v. Spicer , 12 S.W.3d 438 (Ten n. 2000); State v. Hoyt , 928 S.W.2d. 935 (Ten

n. Crim. Ap

p. 1995); State v. Hallock , 875 S.W.2d 285 (Tenn. Crim. App. 1993), perm. to app. d enied (Tenn. 1994). However, consolidation was not challenged by the Appellant at trial or on appeal and therefore, is not an issue before this court for adjudication. Rather, the-7-

Appellant misguidedly argues in favor of the consolidation ruling to support his argument that the October 21 st and November 16 th offense s should ha ve been charge d in the sa

me indictm

ent.

The Appellant cites to Rule 8(a) of the Tennessee Rules of Criminal Procedure, concerning mandator y joinder of offe nses, whi ch provid

es that:

Two or more o ffense s shall be joined in the same indictment, presentment, or informa tion , with each offense stated in a separa te count, or consolidated pursuant to Rule 13 if the of

fen ses are based up on the sam

e conduct or arise

from the s ame criminal episode and if such offenses are known to the a ppropriate prosecuting official at the time

of the re

turn of the indictme

nt(s), pr esentm ent(s), or information(s) and if they are within the jurisdiction of a single court.

The term “sa

me conduct” or “same

criminal episode” refer s to a single

action wh ich may be

divisible into distinct offenses. See State v. Dunning , 762 S.W.2d 142, 143-44 (Tenn. Crim. App. 1988) (separ ate acts of s ellin g coca ine to different officers from two distinct law enforc ement investigations on different days i s not a single action but a series of independently motivated occurrences); State v. B

aird , No. M2000-02314-CCA-R3-CD (Tenn. Crim. App. at Nashville, Oct

. 19, 2001). These offenses are not based upon a single a ction which may be divisible into distinct offense s, and ther

efore t h e Appellant’s conduct is not subject to mandatory joinder under Rule 8. Accord ingly, this i ssue is wit

hout merit

. IV. Sentencing When an accuse d challe

nges the l ength, ra

nge, or th e manner of servi ce of a s entence , this court has a duty to conduct a de novo review of the sen te nce with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d

) (1997) ; State
v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). This presumption is "conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all re levant facts and circ umstance s." Ashby , 823 S.W.2d at 169. Furthermore, when conducting a de novo review of a sentence, this c ourt must c onsider: (a) the evidenc e, if any , recei ved at t he trial a nd th e sentencing hearing; (b) the pre-se ntence r eport; (c ) the prin

ciples of sentenc ing and ar

guments a s to sentencing alternatives; (d) the nature and chara cteristics of the criminal conduct involved; (e) any statutory mitigating orenhanc ement fa ctors; (f ) any sta tement tha

t the Appe

llant made

on his own behalf; and (g) the potential or lack of potential for

rehabilitation or treatment. Tenn. Code Ann. § 40-35-10 2, -103, - 210 (1997 ); Ashby , 823 S.W.2d at 168.

If our review reflects that the tri al court follo wed the statutory sentencing procedure, imposed
a lawful se

ntence a fter ha ving given

due cons ideratio n and pro per weig ht to the factors and principles set out under the sentencing law, and made findings of fact that are adequately supported by the record, then we may not modify th e sentence even if we would have pr eferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). However, where the tria l court fails tocomply with the statutory provision s of sente ncing, ap pellate r eview is de novo without
a presumption of correctness. State v. W infield, 23 S.W.3d 279, 283 (Tenn. 2000) (citing State v.-8-

Poole , 945 S.W.2d

93, 96 (Te

nn. 1997) ). In this c ase, the trial cou rt prope rly considered

principles of sente ncing, and accor

dingly, we

afford the sente ncing decision a pr

esumption

of corr ectness

. A. Minimum Sentence Fourth, the Appellant argues that the“trial court erred in imposing a sentence in excess of the minimum necessary for the ‘E’ felonie s of which Defend ant was c onvicted .” The r ecord r eveals that the Appellant worked for Amteck for approximate ly sixteen months as an electrician’s helper. The Appellant’s employer, who chara cterized the Appel lant as dependable, responsible, and reliable, would have permitted him to return to work if acquitted o f the drug charges. The Appellant had prev iously worked for MTD Products. He was fired fr om MTD Products because of a DU I conviction. The Appe

llant had also served for

seventeen years in the Tennessee Na tional Guard and held the rank of s e rgeant. At the time of trial, the Appellant was still in good standing with the National Guard. Furthermore, the Appellant “had a child support obligation which he paid r egularl y and on which he was current at the time of his arre st.”

In the present case, the Appellant was convicted of two offenses of possession of marijuana in excess o f one-ha

lf ounce withi ntent to sell, a class E felony. Tenn. Code Ann. § 39-17-417 (2001). As a Range I offender, the sente ncing ra nge for p ossession

with inten

t to sell is one to two years. Tenn. Code Ann. § 40-35-112(a)(5) (1997). The presumptive sentence for a class E felony "sh all be the minimum sentence in the range if there are no enha ncement or mitigating factors." Tenn. Code Ann. § 40-35-210(c) (1997). Where enha ncement factors are present, but no mitigating factor s, "then the court may set the sentence above the minimum in that range but still within the range." Tenn. Code Ann. § 40-35-210(d) (1997). Where the re are both enhancing and mitigating factors p resent, "the court must start at the minimum sentence in the range, enhance the sente nce within the rang e as appr

opriate for the e nhance ment fac tors, and then reduce the sentence within the range as appropriate for the mitigating factors." Te nn. Code Ann. § 40-35-210(e) (1997).

The trial court

imposed a sentence of eighteen months for each of fense of possessio n with intentto se ll. The sentences were mandatorily consec utive because the Appellant was on bail for the October 21 st offense when the Nove mber 16 th of fense occurred, and the Appellant wa s later convicted of both offenses. See Tenn. R. Crim. Pro. 32(c)(3).

The trial court found that two enhancement factors applied to the sentences stemming from the October 21 st offense: (1) the Appellant had a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range; and ( 2) the Appellant was
a leader in the commission of an offense involving two or more criminal actors. Tenn. Code Ann. § 40-35-11 4 (1997). The tria l court a pplied en hanceme nt facto rs (1) a nd (2) to the sentenc e stemming from the November 16 th offense and addit ionally applied enhanc ement fa

ctor (13 ); i.e. , the felony was committed while the Appellant was on bail from a prior felony conviction for which the Appellant was convicted. Id . The trial court found that no mitigating factors applied to the Appellant.

The Appellan

t first contends that enhancement factor (1) was misapplied because his history of criminal convictions “mostly involved alcohol, for which he had never bee n treated. ” We find-9-

tha tthe trial court properly applied this factor to the Appellant's sentence s. The Appellant’s pas t criminal record includes numerous misdemeanors; DUIs, public intoxication, and a violation of the check law. Whil e many of

these co nvictions involved a lcohol, w e nonethe

less, conclude th e Appellant's past criminal history is more than sufficient to support the trial court's a pplicatio n of this factor. Second, the Appellant contends that the trialcourt erred in applying enhancement factor ( 2), i.e ., the Appellant was a leader in the commission of an offense involving two or more criminal actors. With resp ect to en hanceme nt factor (2), we also find that the evidence supports the trial court's application of

this factor. The marijuana was kept at Brenda Adams’ home, both before and after the October 21 st arrest of the Appellant . Brenda Adams was also a co-defendant in this case. Endalin Adams often saw the Appellant exchanging “something for money” at the Maxie residence. The record

supports the finding that

the Appellant was the leader in the commission of the offense.

The Appellant next

argues that the trial court erred by not giving any weight to the mitigating factor s, and that due to the presence of mitigators, his sentence should have been set at the minimum of the range, o ne year . The App ellant spe cifically contends that the following enumerated and nonenumera ted mitiga

tors shoul d have been found to apply by

the trial court:
(1) the defendant’s criminal conduct neither ca used nor t

hreate ned seri ous bodily injury, Tenn. Code Ann. § 40-35-113(1) (1997); (2) the defendant had no prior felony rec ord; (3) although c onvicted

of two off

enses, each wa s committe d in a closely-connected series of events and time showing that the offe nses wer e based o n a common

scheme rather than two separate acts in knowing disregar d for the law.

In our de novo review, we conclude that mitigating fact or ( 1) was applicable in that the Appellant's conduct neither caused nor threatene d serious bodily inju ry. Howe ver, we find that, in the total circumstances of this case, this factor is entitled to only minimum weight. State v. Hooper , M199 7-00031- CCA-R3-CD (Tenn. Crim. App. at Nashville, Feb. 8, 1999), affirmed in part and reversed in part by 29 S.W.3d 1 (Tenn. 2000) (reversed on o t her grou nds); State v. Kilpatrick , M1998-00 625-CCA- R3-CD (Tenn. Cr im. App. at Nashville, Jan. 13, 2000), perm. to app. denied (Tenn. 2000). W

ith respe ct to non- enumera ted mitiga

ting fac to r (2), the

trial cou rt prope rly disregarded

this factor. While it is true that the Appellant did not have a p rior fel ony reco

rd, he did have prior misdemeanor convictions. Appellant’s non-enumerated mitigat ing fac tor (3) is not applica ble to t he present c ase because, as we have pr eviously discussed, the two episodes did not constitute parts of a common s cheme or

plan. Ac cordingl

y, we fin d no erro

r in the tr ial co urt’s refusal to apply the Appellant’s non-enumerated mitigating factors.

The weight to b e affor

ded an e xisting fa ctor is left to the trial court's discretion so long as the court complies with the pur

poses and prin ciples of the 1989 Sentencing Act and its findings are adequa tely supported by the record. State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). The we ight to be afforded mitigating and enhancement factors de rives from balancing rel ativ e degrees of culpa

bility within the tota

lity of the circumst ances of the case in volved. Bog gs , 932 S.W.2d at 476; see also State v. Marshall , 870 S.W.2d 532, 541 (Tenn. Crim. App. 1993). Based upon the foregoing, we conclude that the recor d supports the trial court’s decision to enhance the-10-

Appellant's sentence six months beyond the minimum of the range. Therefore, we f in d the trial court's imposition of an eighteen month sentence in each case to be c learly justified.

B. Alter native Sentencing Finally, the Appellant con tends tha t the tria l court “erred in n ot imposing an alternative sentence for the entire period of Defendant’s se ntence.” We first note that the Appellant did receive
an alterna

tive sente nce; i.e. , placem

ent in We state Cor

rection s N etwork , the loca l community corrections program. We assume, however, that the Appellant’ s argum ent was in tended to focus upon the fact that he was denied an alternative se ntence involving t otal non-in carce ration. E specially mitigated or standard offenders convicted of a class C, D, or E felony, who do not possess a criminal history evincing a clear disregard for the laws and morals of

society a nd a fail ure of pa st effor

ts at rehabilitation, are presumed to be favorable ca ndidates for alterna

ti ve sentencing options absent evidence to the contrary. Tenn . Code A nn. § 40-35-102(5), (6) (1997). However, a lternative
sen tencing op tions may be denied if it is shown that the Appellant has a long history of criminal conduct, that conf

ineme nt is nece ssary to avoid depreciating the seriousness of the offense , that confinement

is particularly suited for the Appellant to provide an effective det errent, or that the Appel lant has not been rehabilitated with less restrictive methods. Tenn. Code Ann. § 40-35- 103(1)(A)-(C) (1997). I

n this case, the trial court specifically found that a sentenc e other than total confinement

would dep

reciate the serio usn ess of t he offense, and that the Appellant had not been rehabilitated with less re strictive methods.

We find that the trial court properly denied the Appellant’s request for a non incarcera tive sentence. The following facts are gleaned from the r ecord since no presentence report was included in the record on appeal. As previously noted, the Appellant had pr eviously been convicted of
numerous misdemeanors; including DUIs, public intoxication, and a violation of the check law. The Appellant’s time was suspended for two DUI arrests except for forty-e ight hours, and his time was again suspended except for forty-five days for an arrest occur

ring i n 1999. The

record clearly established that past efforts at rehabilitation have been of no ava il. Again, as observed in the instant case, the Appellant’s potential to reoffend is great as demonstrated by the fact that the November 16 th offense was committed while the Appellant was on bail for the October 21 st offense. Moreover, as the t ri al court found, the record reflects the need to avoid depreciating the seriousness of the two offenses. Accordingly, we find that a sentence of total non-incarceration was properly denie d.-11- CONCLUSION

Based upon t he forego ing, we find that the Appellant’s convictions for two offenses of possession of mariju ana in ex cess o f one-hal f ounce with intent to sell were proper. We furthe r conclude that the trial court properl y sentenc ed the Ap

pellant to an effective thr

ee year community corrections sentenc e of which nine mont hs was to b e serve d in the co unty jail . Accor

dingly , the Appellant’s judgments of convictions and sentences are aff irmed.

___________________________________ DAVID G. HAYES, JUDGE