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

Briefs A pril 10, 20 02

STATE OF TENNESSEE v. TIMOTHY TYRO NE SANDERS

Direct Appeal from the Circuit Court for Bedford County

No. 14492 Charles Lee, Judge

No. M2001-02128-CCA-R3-CD - Filed July 5, 2002

The appella

nt, Timothy Tyrone Sanders, was convicted in the Bedford County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell. On direct appeal, this court reversed the appellant’s conviction because the trial court failed to properly charge the jury on the lesser-included

offense of simple possession, and we remanded the ca se for retrial. State v. Timothy T yrone Sanders , No. M2000-00603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at **13-1 4 (Nashville, January 18, 2001). Subsequently, the appellant was once again convicted of possession of cocaine with inten

t to sell. Th

e trial c ourt sent

enced th e appell ant as a

Range II offe

nder to
seventeen years a

nd six mo nth s incarceration in the Tennessee Depa rtment of Correction. In the instant appeal, the appe

llant rai ses the f

ollowing is sues: (1) whether the evide nce is suf ficient t o sustain his conviction, and (2) whether the trial court erred in determining the length of his sentence. Upon review of the record and the pa rties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t is Affir med.

N ORMA M C G EE O GLE , J., deliver ed the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined.

Merrilyn Feirman, Nashville, Tennessee (on appeal); and Andre w Jackson Dearing, III, and Mike Collins, She

lbyville, Tennesse e (at tri al), for the appe llant, Timo thy Tyron e Sander s.

Paul G. Summers , Atto r ney General and Reporter; Thomas E. Williams, III, Assistant Attorney Genera l; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factua

l Background On October 25, 1999, the appellant was convicted by a jury in th

e Bedfor d County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell and wa s sentenced as a Range II offender to seventeen y ears and six months incarceration. The appellant-2-

success fully appealed his conviction and the case was re manded for new trial. Sanders , No. M2000- 00603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at**13- 14. Upon retrial , the State first presented the testim ony of Of ficer Ja mes Wilkerson with

the Shelbyville Police Department. Officer Wilkerson testified that, due to numerous complaints of narcotics activity on Byrd Street, he a nd Detective Tony Andr

ew Collins w ere pat

rolling the

Byrd Stree

t area o f Shelbyvi lle on the night of October 30, 1998. Officer Wilkerson observed the appella nt erra tically dr iving a Pont

iac Bonne ville and began following him. Eventually, the appellant drove the vehicle into a driveway at 433 Byrd Street and stopped. Officer Wilkerson parked his unmarked ve hicle on the road near the appellant’s vehicle. The appe llant immed iately ex ited the v ehicle a

nd began walking to ward the

office rs’ vehicle. Office

r Wilker son and De

tective C ollins exit

ed their vehicle, identified themselves as police, and approached the appellant’s vehicle. Officer Wilkerson wa lked towardthe appellant who

was on the driver’s side of the vehicle, and Detective Collins approached the pa ssenger side of the vehicle. Officer Wilkerson testified that two other individuals remained inside the vehic le. Willie Dwayne Webster was in the front passenger seat, a nd Santita Makeva Sutton was in the back sea t.

Officer Wilkerso n recoun

te d that the appellant , who had been driving the vehicle, met him at the re ar of the

vehicle on the driver’s side. He described the appellant a s having a strong odor of alcohol, and addit

ionally recalle d that the a ppellant had a “real bad tremor,” wa s shaking, sweating, andappear

ed extre mely ner vous. Officer Wilkerson did a “pat-down” f or weapons and instructed the appellant to sit on the ground.

Detective Collins test

ified tha t, while O fficer

Wilkerso n was tal king with the appella nt, he was obse

rving the passengers inside the vehicle. He beca me concerned when he noticed Webster doing a

“pushing m

otion” or an “up a nd down mot

ion” with h

is hands. Detective Collins pulled his weapon and instructed the passengers to keep their ha nds in plain sight. On ce other officers arrived to assist, Detective Collins instructed Webster a nd Sutton to exit the vehicle. He performed a pat-down search of both passengers and the officers procee ded to conduct a search of the vehicle.

Officer

Wilkerso n stated th at the ve hicle ha d bucket s eats in fr

ont, a nd, located between the driver’s seat and the center console, he discovered a 12 gauge W incheste r tactic al pump shotgun with a pist

ol grip. Th

e gun was fully load

ed with “o ne in

the chamber.” Extra shotgun shells were discovered in the back seat of the ve hicle.

During the sear

ch, Dete ctive Coll

i ns found, i n the driver’s seat, a purple Crown Royal bag containi ng two small, clear plastic ba

gs. Inside each pla stic bag w as a

substance that appeared
to be crac k cocaine. The th

ree occ upants of the vehicle were arrested a nd taken to t

he Shelby ville p olice station where they were searche d. The police found $2,120.25 in small denomina tions i n Webster’s pocket and $95 in cash in the appellant’s possession.

Donna Flowers, a forensic chemist with the Tennessee Bureau of Investigation (TBI) crime laboratory, testified that the substance found in the Crown Royal bag was 3.5 grams of cocaine1 The parties st ipul ated that Flowers is an exper t i n the f iel d of for ensi c chemis try.

2 W e no te that th e State and the ap pellan t agre ed to inco rpo rate the evidence a dduced at t he fi rst sent encing heari ng int o the s entenc ing hea ring f or the ins tant

convic ti on. Fur ther more, the Sta te a nd the app ellant a gree d to sim ply update the pr esent ence re port r ather than hol ding a c ompletel y new heari ng.

-3- base, which is more co mmonly known as crack cocaine. 1 Officer Wilkerson testified that the approxim ate street value of 3.5 grams of crack cocaine is $350 if the drug is purchased in one large
amount. Howeve

r, he adv ised that m

ost users purchase crack coc aine in $20 rocks and “[t]he smaller the amount, the more you pay.” Officer Wilkerson asserte d that, typically, users of crack cocaine possess only asmall amou nt of the d rug at a t ime, usua lly worth around $20-$50. He also explained that crack cocaine is customarily smoked in a “cr ack pipe”; however, no crack pipe was discovered in the vehic le or in the

possessio n of any o f the occ upants. Moreove

r, Offic er Wilke

rson rel ated tha

t, i n his exper

ience, d rug deal ers commo nly use Cro wn Royal ba gs to conc eal their

drugs. Additionally, he mainta

ined that packag ing drugs i n separate bags indicates that the substance is for distribution. He recounted that 3.5 grams is a large amount for personal use, suggesting that the crack cocaine was for distribution.

Officer Wilkerso n testifie d that he i n t erviewed the appellant at the police station. Duri ng the interview, the appellant denied ownership of the drugs. Of ficer Wilkerson acknowledged that he did not remember if the appellant denied ownership of the ve hicle or the gun. However, he noted that the a

ppellant was drivi ng the veh

icle , and t he gun was located within easy reach of the appella nt; in fact, Officer Wilkerson noted that the appellant’s right hand and leg could have rested on the gun while the appellant was driving.

Based upon the foregoing evidence, a jury convicted the appe llant of possession of .5 gra ms or more of c ocaine with intent to sell. At the sentencing hearing, the trial court incorporated

the evidence from the trial and from the first sentenc ing hearing, 2 and, concluding that there was no reason to alter the sentence imposed upon the appellant after the first trial, the trial court again sentenced the appellant as a Range II of fender to seventeen years and six months incarceration. The appellant now appeals his conviction and his sentence.

II. Analysis A. Sufficiency of the Evidence In reviewing the sufficiency of the evidence u

nderly ing a co nviction, this court does
notreweigh or reevaluate the evidence. Stat e v. Ca bbage , 571 S.W.2d 832, 835 ( Tenn . 1978). Becau se the jury

resolve s all ques tions regar ding the credibility, w eight, and application of the evidence, “[a] guilt

y verdict by the jury , approved by the trial court, accredits the testimony of the witnesses for the St

ate and r esolves a ll conflic ts in favor

of the prosecution’s theory .” State v. Bland
, 958 S.W.2d 651, 659 (Tenn. 1997). In other words, the State is e

ntitled to t

he strong est

legitima te view of the ev

idence c ontained

in the re cord as w ell as all reasona ble and le gitim ate infer ences which may be dra

wn from the evidence. State v. Tu ttle , 914 S.W.2d 926, 932 (Tenn. Cri m . App. 1995). Accord

ingly , to be succe ssful in hischallen ge to hisconvicti on, the ap pellant mu st

establish-4-

that no reasonable tri er of fact could have found the essential e lements of the offense in question beyond a reasonable doubt. Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

In order to obtain the appellant’s conviction, the State ne eded to pr ove that the appellant knowingly possessed .5 grams or more of cocaine with intent to sell. Tenn. Code Ann. § 39-17 -417 (19 97). The appellant specifically contends that “the State fa iled to prove that Mr. Sanders had actual or constructive possession of the cra ck cocaine.”

This court has explained: Proof that a pos session is knowing will usually depend on inference and circumstantial evidence. Knowledge may be infer red from control over the vehicle i n w hich the contraband is secreted. Possession of a controlled substance can be based on either actual or constructive possession. The s tate may establish constructive possession by demonstrating that the def endant has the power and intention to exerc i se dominion and control over the controlled substance either directly or through others. In essence, constructive possession is the ability to reduce an object to actual possession. Statev. Brown , 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995) (c itations om itted). Mo

reover , it is wellestablished that a person’s mere presence in an area where drugs are discovered is not, standing alone, sufficient to establish that the person possessed thedrugs. State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Additionally, “mere associ ati on with a person who does in fact control the drugs or

the property where the drugs are discovered is insufficient to support a finding that the pers on possess e d the drugs.” Brown , 915 S.W.2d at 8. Furthermore, possession can be either individual or joint. See State v. Copeland , 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984).

In the instant case, the crack cocaine w as found in the driver’s sea t of the v ehicle driven by the appellant who had just gotten out of the vehicle. See State v. Steven D. Pittman , No. M1999-003 20-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 304, at **8-9 (Nashville, April 7, 2000), perm. to appeal denied , (Tenn. 2000). While there was no proof that the appe llant owned the vehicle, there wa s substant ial proof that the a ppellant was driving the veh

icle. Thi s court ha s held “that a defendant’s possession of contraband may be infe rred from a defendant’s ownership or control over a ve

hicle in which the contraband is secreted.” Statev. James A. Jackson , No. M1998- 00035-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 373, at *36 (Nashville, May 5, 2000); see also Statev. Elpidio Valdez , No. M1999-00 791-CCA -R3-CD, 2001 Tenn. Crim. App. LEXIS 256, at *16 (Nashville, April 4, 2001). We find that this evidence is sufficient to prove that the appellant had the “ability to reduce the [crack cocaine] to actua l possession.” Brown , 915 S.W.2 d at 7. In s um, the appellant was driving the vehicle, the drugs were found in his seat, the pump-action shotgun was locateddirectly by the driver’s seat, and the vehicle “w as in an area known for drug transactions.” Id. at 8; see also State v. Shaw , 37 S.W.3d 900, 903 (Tenn. 2001). Additionally, we note that Officer Wilkerson described the appellant as “very nervous.” See Statev. Selina G. Harrelson , No. W1999- 00521-CCA-R3-CD, 2000 Tenn . Crim. App . LEXIS 58 3, at *20 ( Jackson, July 28, 20 00). The se3 W e no te that D etectiv e Co llins did remember that roll ing papers were found on Sutt on, but he ass erted that

crack coca ine is n ot ing ested by e mp loyin g ro lling p ape rs.

-5- facts constitute more than mere presence in an area where the drugs were found and more than mere association with the other passengers. Brown , 915 S.W.2d at 8.

Once the app ellant’s possession of the cocaine was established, the State was require d
to prove tha

t he posse ssed the c ocaine with the inte nt to sell. Tenn. Code Ann. § 39-17-419 (1997)
prov ides that “[i]t may be inferred fr om the amount of a controlled substance or s ubstance s possessed by an offe

nder, along with other relevant facts surrounding the ar rest, that the controlled substance or substance s w ere possessed with the purpose of selling or otherwise dispensing.” Flower s, the TBI fore

nsic chemist, testified that her examination of the substance verified that it was 3.5 grams of crack coca

ine. Again, Officer Wilkerson asserted tha t 3.5 grams is a large amount of crack cocaine for an

addict or mere use r to possess for their own use and opined that 3.5 grams of crack cocaine is worth at least $350. In hisexperience, most users buy $20 roc

ks and only have $20
to $50 worth of crack cocaine a t any one tim e. Officer Wilkerson testified that drug deale rs commonly

hide their stash in Crown Roy al bagsand pac kage th e drug s in separ

ate plas tic bags for the purpose of distribution

. See St ate v. Larry Wayne Bur

ney , No. M1999-00628-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 303, at **7-8 (Nashville, April 7, 2000). Furthermore, the appellant

was found with

$95 in small bills and his passenger, Webster, was found with over two thousand dollars in his possession. Additiona lly, we aga

in note that the appellant possessed a loaded shotgun. See State v. Adarry l Devon Brooks , No. W1 999-00632-CCA-R3-CO, 2001 Tenn. Crim. App. LEXIS 21, at

**9-10 (Jackson, January 9, 2001). Moreove r, no drug paraphernalia, such a s a “crack pipe” for the ingestion

of crac k cocaine, was di scovere d in the ve hicle or on any of the pa ssenge

rs. 3 Brown
, 915 S.W.2d a

t 8. We conc lude that

this e vidence is sufficient to sustain the appellant’s conviction for possessing over .5 grams of c ocaine with intent to sell.

B. Sentencing As his second issue, the appellant argues that the trial court er red in se ntencing him
to seventeen y ears and six months incarceration, complaining that he received “almost the maximum sentence.” Generally , if the record reveals that the trial court ade quately consider

ed sentencing principles and all relevant facts and circumstance s, this court will acco rd the trial court’s deter m inations a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997) ; State v. Ashby
, 823 S.W.2d 166, 169 (Tenn. 1991). In any event, the burden is o n the appe llant to demonstr ate the impropriety of his sentenc e. Tenn. C ode Ann. § 40-35-401, Sentencing Commission Comments. The appellant contends that the record does not demonstrate tha t the trial court considered

the se ntenc ing principles. However, our review indicates that the trial cour t made the appropriate considerations to warrant the applica tion of the presumption of correctness.

We must consider the following factors in the course of our de novo review: (1) the evidence, if any, re ceived at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and argume nts as to sentencing alternatives; (4) the nature a nd characteristics of the criminal conduct involved; (5) evidence and information offered by the parties-6-

on enhancement and mitigating factors; (6) any stateme nt by the appellant

in his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35 -102 and -103 (1997), - 210 (Supp. 2001); see also Ashby , 823 S.W.2d at 168.

Initially, the trial court determined that theappellant was a Range II offender and the appella nt does not

contest this finding. We note that the appellant has more than two prior felony convictions and, accordingly, was properly considered to be a Range II off ender. Tenn. Code Ann. § 40-35-106(a)(1) an d (c) (1 997). Fur thermore , possessi on of more than .5 gr

ams of co caine is a class B felony. Tenn. Code Ann. § 39-17-417(c)(1) (1997). Thus, the tria l court needed to set the appellant’s sentence at “not less than twelve (12) nor more than t wenty (20) years.” Tenn. Code Ann. § 40-35-112(b)(2) (1997).

Tenn. Cod

e Ann. § 40 -35-210 ( Supp. 2001) provides : (c) The presumptive sentence for a Class B, C, D and E felony shall be the minimum sentence in the range if there ar e no enhancement

or mitigating factors. . . .

(d) Should there be enhancement but no mitigating factors for a Cla ss B, C, D or E felony, then the court may set the se

ntence above the minimum in that range but still within the range. . . .

(e) Should there be enhancement and mitigating f actors for a Class B, C, D or E felony, the

court must start at the minimum sentence in the range, enhance t he sentence within the range as a ppropriate for the enhancement

factor s, then reduce the sentence within the rang e as appropriate for the mitigating factors. . . .

The trial court found the existence of three enha ncement factors. First, the trial court determined that the appellant “has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35- 114(1) (1997). The presentence report ref lects that the appellant has been c onvicted of three felony offense s, one more than is necessary to establish the appellant’s status as a Range II o ff ender. Moreover, the appellant admitted at the first sentencing hea r ing that he has a history of smoking crack cocaine. See Statev. Alexander , 957 S.W.2 d 1, 7 (Te nn. Crim. A

pp. 1997) ; State v. LaDaniel Ray Williams , No. 03C01-9701-CR-00002, 1998 Tenn. Crim. App. LEX IS 20 , at *6 (Knoxville, January 8, 1998). Additionally, he ackn owledge d that he h ad a numbe r of misde meanor c onviction s, buthe was unsure of

the exact number. See State v. Maurice Garner , No. 02C01-9508-CR-00223, 1997 Tenn. Cri m. App. LEXIS 476, at *18 (Jackson, May 19, 1997) . We con clude tha t these fa cts are sufficient to support the trial court’s application of enhanc ement factor (1).

The trial court also found that the appella nt “has a previoushistory of

unwillingness to comply with the conditions of a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(8). At the sentencing hearing, the appella nt admitted to two previous probation-7-

revoca tions, thus warranting the application of this enhancement factor. See State v. Jackson , 60 S.W.3d 738, 741 (Tenn. 2001).

Additi onally
, the trial court afforded great weight to the fa ct that the appellant “possessedor employ ed a fir earm, e xplosive d

evice or other de adly weapon during the commission of the offense.” Tenn. Code Ann. § 40-35-1 14 (9). Particularly, the court was concerne d that the appellant possessed a “very lethal and dangerous wea pon” in order to “use in the event there was

some difficulty surrounding these drugs.” We a lso agree with the tr

ial cour t’s applic ation of th

is enhancement

factor. See State v. Johnny Wayne Tillery , No. 01C01-9506-CC-00182, 1998 Tenn. Crim. App. LEXIS 421, at *47 (Nashville, March 30, 1998).

The trial court found that there were no mitigating factors pr esent. In his brief, the appellant “conce des that th

ere ar e enhan cement f

actors p resent b ut submits th at the tri al court did
notcorrectly weigh the mitigating factors presented.” Spec ifically, the appellant first contends that his “criminal conduct neither caused nor threa tened serious bodily injury.” Tenn. Code Ann. § 40- 35-113(1) (1997). Our supreme court recently re jected the per se denial of this mitigating factor in cocaine cases; however, the court indicated that denying mitigation might be a

ppropria te incertain fa ctu al situations. State v. Ro ss , 49 S.W.3d 833, 848- 849 (Ten

n. 2001); see also State v. Ch ianti Fuller
, No. M2001-00463-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 962, at **16-17 (Nashville, December

28, 2001) ; cf. State v. Vanderford
, 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997). We believe the instant case is one such situation. The appellant was driving around with a fully-loaded 12 gauge shotgun in a neighborhood knownfor drug transactions. Moreover, there was “one in the chamber”; in other w ords, the gun was r

eady to f ire. We conclude that these

cir cumstance s are sufficient to warrant the denial of this mitigation factor.

T he a ppellant also contends that he “played a minor role in the commission of the offense.” Tenn. Code Ann. § 40-35-113(4). We disa gree. T he appellant was driving the vehicl e in which the

drugs we

re found , the drug s were d iscover ed in the s eat the appe ll ant had r ecently vacated, and the loaded sh otgun was discover ed in an a rea ea sily acc essible to

the appe llant. These actions do not indicate that the appellant played a “minor role” in the cr ime.

The appellant

further argues that “although guilty of the crime, [he] committed the offense under suc h unusual c ircumsta

nces tha t it is unlike

ly that a sus tained in

tent to viol ate the law motivated the criminal conduct.” Tenn. Code Ann. § 40-35-113(11). At the sente ncing hearing, the appellant argued t hat, bec ause he w as a

crack a ddict, he was suffering under the influence of the addiction. We do not f

ind these facts sufficient to warrant the application of this mitigating factor, particu larly in light of t

he appe llant’s a

dmission tha

t he has no t pursued

treatme nt for h is drug addiction even though such treatment has been offered. By continually using crack, the appellant essentia lly admitted a sustained i nte nt to violate the law, an intent that was furthered when the appellant engaged in the sale of crack c ocaine.

Additionally, the appellant states that he “acted under dure ss or under the domination of another person, even though the duress or the domination of another person is not suffic ient to-8-

constitute a defense to the crime.” Tenn. Code Ann . § 40-35-11 3(12). T he reco rd is comp letely devoid of any proof to support the application of this mitigating factor.

Finally, the appellant maintains that, unde r the “c atch-a

ll” provision of Tenn. Code Ann. § 40-35-1 13(13), t

he trial c ourt s hould hav e conside red that the appe llant was an honor

ably discharged

veteran and that he had a good w ork history . Peripherally, we note that, although the appellant’s status as an honorably discharged veteran is unverifie d, the State conceded at the sentencing hearing

that the a

ppellant was ho norably d ischarg ed from th

e armed service s. Nonetheless, the State

argued t hat, soon a

fter his d ischarg e from the military, the appellant began
to commit serious felonies

. Accordingly, the State contended that any mitigation would be minimized due to the

appella nt’s quic k descen

t into a cr iminal life style foll owing his honor able dischar ge. We a gree. W hile the appellant’s service to his coun

try is admi

rable, h e soon tur ned to a life of crime upon leaving the military. Even ass uming arguendo tha t this fac tor is applica

ble, it is entitled to little weight. See State v. Ronald Collier , No. 02C01-9402-CC-00029, 1994 T enn

. Crim. App. LEXIS 636, at *8 (Jackson, October 5, 1994) (stating that it is not mandatory for a trial
court to consider an honorable discharge); cf. State v. Joe C. Anderson
, No. E1999-02485-CCA-R3- CD
, 200 0 Tenn. Crim. App. LEXIS 707, at **21-22 (Knoxville, September 12, 2000), perm. to appeal denied , (Tenn. 2001).

Additionally, the appellant argues that he has a “fairly substantial work history.” We do not find this statement to be suppo rted by the record. The appellant argues that he ha s been employed in construction “on and off” for approximately the past ten y ears. However, the record reflec ts that he was incarcerated for muc h of the last ten years. Additionally, most of the appellant’s allegedwork history is unverified. Accordingly, we do not fault the trial court for failing to apply this mitigating factor. See State v. Kevin Lane Farrar , No. M2001-01370-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 337, at *22 (Nashville, April 16, 2002), application for permission to appeal filed (Tenn. 2002); see also Statev. Haison Fields , No. M2000-02144-CCA-R3-CD, 2001 Tenn. Cri m. App. LEXIS 804, at **3 5 -36 (Nashville, October 8, 2001), perm. to appeal denied , (Tenn. 2002). Therefore, we conclude that the trialcourt did not err in sentenc ing the ap

pellant to seventeen years and six months incarceration.

III. Conclusion

Based upon the foregoing, we affirm the judgment of the trial cour t.

___________________________________ NORMA McGEE OGLE, JUDGE