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

Briefs O ctober 1, 2002
STATE OF TENN ESSEE v. CORRIE J. JOHNSON
Appeal from the Circuit Court for Hardin County No. 8073 C. Creed McGinley, Judge

No. W2002-00429-CCA-R3-CD - Filed October 23, 2002

The Defendant, Corrie J. Johnson, was convicted by a j ur y of se ll in g c oc ai ne , a Cl as s C fe lo ny. The trial co urt s entenced the Defendant as a Rang e II multiple offender to eight years, to be served
consecu tively to two othe

r sentences, for

which the Defend ant was o n probati on. The tr ial cour t also revoked the Defendant’s probation on the two prior c onvi ctions. In this appeal as of rig ht, the Defendant

prese nts three i ssues: whether the evidence was sufficient to sustain his conviction, whether the trial court

erred in its application of enhancing and mitiga ting factors when deciding the Defendant’s sentence, and whether the trial court er red by re voking the Defendant’s probation. We affirm t he judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and A LAN E. G LENN , JJ., joined.

Richard W. De ber

ry , As sist ant Publ ic D efe nde r, C amden, Ten

nes see , for th e ap

pel lan t, Co rri e J. Johnson.

Paul G. Summers, A

ttorney Genera l and Repo

rter; John H . Bledso e, Assista nt Attorne

y General ; R obert Radford , Distric t Attorne y General ; and John W. O verton, A ssistant D istrict At t orne y General, for the appellee, State of Te nnessee.
OPINION

On March 6, 2001, Investig ator Tim Cunningham of the Savannah Police Department was working as a member of an undercover dr ug task force. He used an informant named Jo Ellen Kee who established herself in the community to make drug purchases. Cunningham testified that on March5 the Defendant told the informant that he would sell her drugs. On March 6, Cunningham followed his informant to th e Defe ndant’s g randmoth er’s hou se. A vide o camer a and au dio equipment

were mou

nted in the

informan

t’s vehicle so Offic er Cunnin gham co uld listen t

o-2-

conversations taking place in t he vehicle and videotape any thing occurring inside the car. A t the grandmother’s house, Cunningham observed his informant, Ms. Kee, talking to the Defendant and
a man named Tuffy

Jackson. A few minutes later, he heard Kee g et back in her car, and she told hi m that she was going to meet the Defe ndant elsewhere. At the next location, hewas able to hear the voices of Kee and

the Defendant inside her car. Cunningha m then followed them to a gas station, where the Defendant made a call from a pa y telephone. When the Defend ant returned to Kee’s vehicle, he instructed her w here to g o next. At this point, Cunningham did not know where the Defendant

and hi s info rmant were goi ng; he was simply following the car. Finally

the informant’s
car arrived at a trailer. The Defe ndant got out. When the Defendant returned to t he vehicle, Kee drove back to the house where she had picked him up, and he g ot out of the car. Eventual ly Cunningham

met wi th Kee, and she g ave him c ocaine t hat she ha

d recei ved from

the Defe ndant,
some of whi ch was lo ose and some of which was in a white piece of pape r. Cunningham then packaged the cocaine and prepared it to be sent to the Te nnessee Bureau of I

nv estigation Cri me Lab or at or y.
Jo Ellen Kee, the informant used by Officer Cunningham , testified that she went to the Defendant’s grandmother’s house in her capa city as an informant for the drug task force

. When she arrived, she told the Defendant that she w anted to buy c ocaine. He told her that they would nee d to go to another house. She drove the Defendant to the other house, and when they got there, she gave the Defend ant one- hundred dollars th at h ad bee n given to her by Officer Cunningham. Ms. Kee testified that the Defendant then gave her two loose pieces of cr ack cocaine and told her that he would give her the rest later. The De fendant and Ms. Kee then left this second house in her car. The Defendant

told her that he needed to pick up something and had her s top at a g as station so he cou ld make a telephone call. Ms. Kee testified that she a ssumed he w as taking her to pick up more
c ocaine. Ultimately the Defe ndant had her drive to a trailer where he retrieved a p lastic ba g containing cocaine. He divided the cocaine betwee n the two o f them, putting Ms. Kee’s share in a piece of paper that he found in the floorboard of her car. After she dropped the Defendant off, she gave the cocaine she had r eceived to Officer Cunningham.

BrianEaton, a forensic scientist with the T ennesse e Bure au of I nvestig ation Crime Lab or at or y, testified that he tested the drugs that Officer Cunning ham provided to him. He determined the sample to be .2 grams of coca ine.

The Defend ant conte

nds that the evidence was in sufficie nt to supp ort his conviction for selling cocaine. Tenness ee Rule o f Appella te Proce dure 13( e) pres cribes th at “[f]indings of g uilt in criminal actions whether by the trial court

or jury shall be s et aside

if the evidence i s insuffic ient to support the findings by the

trier of fact of guilt bey

ond a reasonable doubt.” Evidence is sufficient if, after r eviewing the evide nce in the light most

f avorable to the prosecution, any rational trier of fact could have found the

essentia l element s of the crime bey ond a reasonable doubt. See Jackson
v. Virgini a , 443 U.S. 3 07, 319 (1 979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier

of fact destroy s the presumption of innoce nce and imposes a presumption of guilt, a convicted criminal defendant bea rs the burden of showing that the evidence
was insufficient. See McBee v. State , 372 S.W.2d 173, 176 (Tenn. 1963); see also Stat e v. Buggs ,1 W e note that Jo Ellen Kee is t he informant responsible f or Mr. T aylor’s drug convict ion.
-3- 995 S.W.2d 102, 105-06 (Tenn. 1999 ); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggl e , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reason able and

legit imate inf erences that may

be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 191; see also Buggs , 995 S.W.2d at 105. Likewise, sho uld the reviewing court find particular conf licts in the trial testimo ny, th e court must resolve them in favor of the jury verdict or trial court judgment. See Tuggl e , 639 S .W.2 d at 91 4. All quest ions invo lvin g the cre dibilit y of witnesses, the we ight and value to be given the evidenc e, and a ll factua l issues ar e resolv ed by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

In his challenge to the sufficiency of the evide nce, the Defend ant state s that “the credibi lity of the informant is not sufficient to convict him.” He points out that Ms. Kee was working for the drug task forc e only beca use h er proba

tion was a

bout to be r

evoked, and she g ot paid by the task force only if she suc cessfully

purchased illegal drugs. The D efendant further notes that Ms. Kee has six prior convictions for delivery of drugs. Furthermore, one of the Defenda nt’s witnesses, Richard Taylor, testified that he had observed Ms. Kee use cocaine while she was working as an informant for the drug task force. 1 F inally, the Defendant testified that he did not sell drugs to Ms. Kee, altho ugh he admitted that he “shared” some cocaine with her. For the above reasons, the Defendant argues that the informant’s credibility is not sufficie nt to support his conviction for selling cocaine. This arg ument must f

ail.

As we have already

stated, appellate courts do not resolve issues rega rding the credibility of witnesse s. See State v. Mo rris , 24 S. W.3d 7 88, 795 (Tenn. 2000). This Court must resolve any conflic ts in the trial testimony in favor of the jury verdict. See Tuggl e , 639 S.W.2d at 914; State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). Obviously, the jury credited the testimony of Ms. Kee and convicte d th e Defendant of selling cocaine . This Court may not re-we igh the evidence relied
on by t he ju ry. See Evans , 838 S.W.2d at 191. Ra ther we a re const rained t o determ ine wheth er, in the l ight most favo rable to the prosecution, any rational trier of fact could have found that the Defendant

is guilty bey

ond a reasonable doubt. See Jackson v. V irginia , 443 U.S. 307, 319 (1979). In this case, we find

that the evidence is sufficient to support the Defendant’s conviction of selling cocaine . Accor

dingly , this issue

is without me

rit.

The Defendant also asser ts t hat the trial court erred in its application of enhancing and mitigating factors when deciding the Def endant’s sentence. When an accused challenges the le ngth, range, or manner of service of a sentenc e, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the-4-

record that the tr

ia l court c onsidered the sentencing principles and all re levant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, re ceived at the trial and sente ncing h earing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentencing alte rnatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating

or enh anceme nt f

actors; (f) any

statement made by the defe

ndant regarding sentenc ing; and (g ) the pot ential or lack of potential for rehabilitation or treatment. See Tenn . Code Ann . §§ 40-35 -102, -10 3, -210; State v. Brewer , 875 S.W.2d 298, 302 (Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 8 38, 844 (T enn. Crim. App. 1988).

If our review reflects that

the trial court followed

the statutory sentencing

procedure, that the court imposed a lawful sentence after havin g given due consideration and proper we ight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adeq uately

supporte d by

the rec ord, then

we may not modify

the sente nce eve n if we wouldhav e preferred a different result. See State v. Pik e , 978 S.W.2 d 904, 926- 27 (Tenn . 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

The trial court sentenced the Defendant as a Range II multiple offender to eight years in the Department

of Correction, t o run consecutively to the se ntences for the Defendant’s two prior convicti ons. The court found no mitigating factors. The c ourt found one enhancement factor, that the Defendant committed the offense while on probation. SeeTenn. Code Ann. § 40-35-114(13). The Defendant argues that the trial c ourt erred by not findi ng as a mitigating factor that the Defendant’s conduct n

either c aused no

r th reatenedserious bodily injury

. See Tenn. Code Ann. § 40-35-113(1). This Courthas held that mitigating factor (1) need not be applied when the defendant is convicted of an offense involving coca ine. See Statev. Vanderford , 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997 ); State v. Keel , 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994). We r ecently addre ssed this issue in State v. Herman Holston , No. W2001-02004-CCA-R3-CD, 2002 Tenn. Cri m
. App. LEXI

S 5 38, a t *11 (Jackson, June 26, 2002). In rejecting the def endant’s argument that the trial judge e

rred by not apply

in g mitigating factor (1) when dec iding the defendant’s sentence for selling cocaine , we state d that:
[i]nherent within the trafficking and distribution of drugs is the potential for serious bodily injury. Although we

recognize that

notall drug deals involve violence, we do, however, recognize that the very nature of the act makes the potential for serious bodily injury ever pr

esent. Accordingly , we f ind that the sale of c ocaine i s not so sufficie ntly free f rom all da

nger su ch that it c an be used to mitigate a seller’s sentence.2 The Tennessee Supreme C ourt has held that mit igating f actor (1) is not per se i napplicable in cocaine posses sion cases. See State v. Ross , 49 S.W .3d 833, 848 -49 (Tenn. 200 1). In that cas e, the defendant was f ound to have
con structive ly possess ed the cocai ne, whi ch was l ocated sev era l r ooms away fro m wh ere the polic e foun d the d efend ant. The court not ed that

there was no evi dence that the defendant sold or attemp ted to sell the drugs. “Ha d either of these circumstances been present, t hen the dangerous nature of t he drug, combined with the dangerous nature of many drug transactions, may have i ndeed supported the tri al court’s rejection of t his fact or as constitut

ing a threat o f serious bod ily injury.” Id. at 848.

-5- Id. Theref

ore, the trial cou rt did not e

rr by refusin g to app ly mi

tigating factor (1) to the Defendant’s sentence. 2 This issue

is without me

rit.
Finally, the De

fendant argues that the trial court er red by re voking the Defendant’s probation. A trial judge is vested with the discretionary authority to revoke pr

obation if a preponderance of the evidence establishes that a defendant violated the conditions of his or her probation. See Tenn. Cod e Ann. §§ 4 0-35-310 , -311(e ); State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The trial judge must, however, adduc e sufficient evidence during the probation revocation hearing to allow him or her to make an intelligent decision. See Mitchell , 810 S.W.2d at 735.

When a probation revocation is challenged, the appe llate courts have a limited scope of review. For an appellate court to be w arranted in finding that a trial judge a bused his or her discretion by revoking

probation, it must be established that the record contains no substantial evidence to support the trial judge’s conclusion that a proba tion violation occurred and that because of the violation, probation should be revoked. See State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1 991); State v. Stu bblefield , 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997).

The trial court based its decision to revoke the Defenda nt’s probation on the instant conviction. The Defendant states that “the revoca tion of his probation will not subserve the ends of justice in the best interests of both the public and the defendant.” The lang uage used by

the Defend ant is take

n from Barke

r v. State , 483 S.W.2d 586, 590 (Tenn. Crim. App. 1972). However, the court in Barker also stated that these considerations “rest[ ] in the sound discretion of the [trial] court.” Id. The trial court did not abuse its discretion by revoking the Defendant’s probatio n based u

pon his con

viction fo r selling cocaine . Therefore thisissue is without meri t.

The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE