# FILED

Au gust 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT JACKSON JUNE 1996 SES SION
STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9512- CC-00389

) ) Madison County v. ) ) Honorable Fr

anklin Murchison, Judg e ) GEORGE E. MARTIN, JR., ) (Possessi on with the intent to sell cocaine) ) Appellant. ) For the Appell ant : For the Appell ee : George Mo rton Goo ge Charles W. Burson Distric t Public Defender Attorney Gen eral of Tennessee and and Pamela J. Drewery Robin L. Harris Assistant Publ ic Defender Assistant Att orney Gener al of Tennessee 227 W. Baltimore Street 450 James Roberts on Parkway Jackson, TN 38301 Nashvil le, TN 37243-0493 Jerry Wood all Distric t Attorney General and Nick Nicola Assistant D istrict A

ttorney Gener

al P.O. Box 2825 Jackson, TN 38302

OPINION FILE D:____________________

AFFIRMED Joseph M. Tipton Judge1 Alt hough the defendant does not present itin h is st atement of t he issue s, he begi ns the argument port ion ofhis b ri ef wi th a cl aim that the gui lt y v erdi ct “ is agai nst t he great weight and pr ep on de ra nc e o f th e e vid en ce ,” p oin ting to p er ce ive d w ea kn es se s in the sta te’s pro of . T his cla im pres ents no c ogn izable iss ue. See Stat e v. Matt hews , 805 S.W .2d 7 76, 7 78-7 9 (T enn . Crim . App . 199 0). Ap pellate review of the suff icienc y of the e viden ce d oes not a llow us to rew eigh the e viden ce o r to consider

how it might pr eponderat e. Rat her, we must afford the st ate t he str ongest l egit imate vi ew of t he evi dence co nta in ed i n th e rec ord, in clu di ng al l r easonab le and l egi ti mate i nfer ences wh ich may be dr awn there from

. Stat e v. Cabbage , 571 S. W .2d 832, 835 (Tenn. 1978). Then, i t i s only when the f acts, so vie wed, ar e insuf fi cientas a matter of l aw for a r ati onal t ri er of f act t o fi nd gui ltbeyond a reasonabl e doubt may we conclude that the ev idence is i nsuffi cient . I n thi s respect , ourrevi ew of t he evi dence i n thi s case leads u s to t he concl usion t hat t he defendantwas convi cted upon suffi cientevi dence. 2 O P I N I O N

The defen dant, George E. Martin, Jr., appeals as of right from his convicti on by a jur

y in the C ircuit Co urt of Madison C ounty for posse ssion wi th the intent to sell coca ine, a Class B felony. The tr ial court s entenced the defendant as a Range I, standard off ender to nine years to serve ninety days in the county jail and eight years and nine mon ths o n com mun ity cor rect ions . The trial cour t also impo sed a fine of t wo thousand dollar

s. On appeal, t he defendant contends that: (1) the trial court erred by denying his motion to suppress; (2) the prosecutor enga ged in impro per argument by commenting on the abse nce of witnesses; (3) the t rial c ourt erred by a llowin g into ev idence the cocai ne seized by the officers

because the statefailed to establish the proper chai n of custody of the evidence, by failing to take judicial notice ofnewspaper articlesreporting the desecrati on of the Drug Tas k Force’s evidence v ault, and by not allowi ng the defendant more time to g at her proof regardi ng the desecration; an d (4) the trial court erred in sentencing the defendan t because it failed to consider mitigating factors and impr operly co nsidered an enhancemen t factor. 1 We hold that the trial court did not err. We aff irm the defendant’s judgment of convicti on.
Officers Greg Robinson and T im W illis of the Madison County Sheriff ’s Department w ere conducting a drug sweep at Merry Lane Courts. Initially , they observed the defend ant walking towards them through a playground approximately3

seventy- five yar

ds away . When the defendant was with in fifty yar ds of the officers, the defendant reached insi de his pocket, removed somethi ng and dropped i t on the ground

. The defendant then turned to t he right and began wal king away from the officers

. Officer Willis stopped the defendant and asked him for ident ification. M eanwhile, Officer Robinson r

eturned to the pl ayground area to search for the item dropped by the defendant. Officer Willis permitte d the defendant to leave before Officer Robin son discovered a plastic b ag containin g a substance that appeared to be c rack cocain e. The plastic bag contained fourteen r ocks of a cocaine- based substance hav ing a street value of about two hundred an d fifty to two hundred and eighty dollars. The of ficers then arrested t he defendant as he entered Kentucky F ried Chick en, finding three hundred and ten doll ars in cash and a pager on t he defendant.

I. MOTION TO SUPPRESS The defen dant contends that the trial court should have granted his motion to suppres s in that the pol ice lacked pr obable cause for the warrantl ess stop of him. Howev

er, the defendant has fail ed to raise theissue in hi s motion for new trial. The failure to rai se the issue i n the motion for new trial constitutes a waiver of the i ssue on appeal. SeeT.R.A.P. 3(e) and 36(a). Al so, the defendant has not included a transcript

of the hearing o n the motion to suppr ess in the re cord on appeal. It is the defendant’s duty “

to have prepar

ed a transcri pt of such part of the ev idence or proceedings

as is necess ary to conv ey a fair, ac curate and complet e account of what transpired w ith respect t o the issues t hat are the bases of appeal.” T.R.A. P. 24(b). W hen necessary parts of the record are n ot included on appeal, th e court must presume that the tr ial court’ s ruling was cor rect. State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. Ap p. 1991). Such i s the case before us

.4 II. PROSECUTOR ARGUMENT Next, the de fendant contends that the prosecutor committed prosecutor ial misconduct duri ng his cl osing arg ument by commentingon the absence of w itnesses. He argues that the witnesses were not knowledgeable about ma terial facts and could have testified only to collateral matters. He asserts th at the comments were especially damaging beca use the defendant’s cr edibility had been attacked.
During the trial, the defendan t testified that he ha d borrowed his sister’s
car to v isi t hi s co usi n, Y olan da Br own , at Mer ry

LaneCou rts . Hesai d that he h ad l eft Brown’s apartment to walk to Kentucky Fried Chi cken to get s omething to eat at the time that he was arrested. He also stat ed that he was livingwith hi s mother at the ti me. Regarding the three hundred and te n dollars that he had with him at the time of his arrest, the de fendant claimed that he had received approximate ly one hundred and fifty dollars from an i ncome tax refund and that he had won the rest of the money gambling. The defendant also testi fied that he had the pag er to keep in contact wit h his friends. He conceded that he ha d lied to the office rs about the source of the money. On crossexamination, the defendant admitted that his mother, si ster, cousi n and his friends who cont acte d him thro ugh h is pa ger were not t here to te stif y.

In relevant part, the prosecutor’s argument was as follows: Now, . . . the Judg e is going to instruct you that you can weigh the c redi bilit y of wit nesses and he is also goingto instruct you th at the burden of proof i s upon the State. And that burden never shi fts. Howeve r, th e def end ant h ere t oda y, it’s his cho[ic]e to pre se nt te stim ony an d put s his o wn credi[]bil ity into issue that you can weig h. Now, imagine thi s if it we re. If Inves tigat or Robin son had testified w e found crack cocai ne, we saw the defendant drop it, and that was the only proof. W e wouldn’t bring Willis to say he had all the money , we didn’ t bring i n the lab person to say thi s in fact wa s crack coca ine. You ma y very well say, you didn’t carr

y your burden throug h. And, that would be fine. But, we broug ht in these peopl e to show y ou each step that was taken. The defendant, on th e other hand do esn’t even bring in his own mother to say in fact that he did live in5 Denmark, at som e t ime. Doesn’t bring in the people that he was supposed to be gamblingwith. Doesn’t bring in all these people who needed to co ntact h im, by use of his pager. Doesn’t bring in his sister, who’s car he said he borrow ed and most of all, and most importantly , doesn’t even bring i n the cousin that he says

he was ther

e to visi t. Now, would you all ow the State to take steps like that ? MS. D REW ERY: Your

Honor. The burd en’s different for the State, than it

is for the Defense. THE COURT: Well, the b urde n is on the State . The Defendant doesn’t have to prove an ythi ng. T he state has to prove the c ase. The prosecutor continued his argument by ac knowledg ing that the state had the burden of proof in the case, b ut asserted that the jury was not required to ac cept the defendant’s proof w ithout questi on.

The prosecutor also state d that the defen dant had off ered no plausible explana tion f or being in a high crim e area, arguing:

You have his w

ord, but none of

the corrobor

ating. None of the people, who could supposedly back his word up. And, what’s his wo rd worth ? Well, he’s told you onc e, at least once , that he lied to the office rs, whi le o ut there on the s cene. He li ed about wher e the m oney came from. Per haps, he lied abou t what he was actually

doing out ther

e. The prosecutor th en argued that the defendant wanted t he jury t o believe t hat the officers had lied b ut that “he doesn’ t offer anything to back it up. He doesn’t offer th e supposed cousin, he was out there vis iting.”

The defendant refers to the comments made by the p rosecutor as references to missing witnesses for the p urpose of the jury inferring that the witnesses’ testimony w

ould have been u nfavorable had th ey testified. “As a predi cate for comment on a missin g witn ess, the evi dence must show that the wi tness had knowledg e of material facts, that a relati onship exi sts between the witnes s and the party that would naturally incline the witness to favor the party and that the m issing witness was available to the process of the Court fo r the trial.” Delk v. State , 590 S.W.2d 435,6

440 (Tenn. 1979). The mer e fact that a party

fails to produc e a particula r person w ho may have s ome knowledg e of the facts involved does not justify appl ication of the inference. State v. Francis , 669 S.W.2d 85, 88 (Tenn. 1984).

The initial pr

oblem with the defendant’s posit ion, though, i s that he did not object to the argument based upon themissing w itness inferenc e. Rather, he objected to the state’s argument becauseit tended to shi ft the burden of proof to hi m. The trial court sustained this objection an d gave a curative instruction, which was immediately followed by

the state’s ac knowledg ment that the defendant did not have any burden of proof. The defendant may not object on one g round and then asse rt a new or different theory to s upport the object ion in the motion for new tri al or on appeal. Stat e v. Adkisson , 899 S.W.2d 626, 634-35 (Tenn. Cri m. App. 1994). R aising a new ground on appeal for objecti ng to the intr oduction of evi dence results in a wai ver of the is sue on appeal. Id. at 635.

In any event, we do not believe t hat the prosecuto r’s arg ument was improper as c laimed by thedefendant. During cross-examination, the pr osecutor asked the defendant, wit hout objection, whether hi s mother, sis ter, cousin a nd friends wh o contacted him on hi s beeper we re present to testify. The defendant stated that they were not present and admitted that they could have testified in his beha lf. In this respect, the prosecutor’s refe rence to the witnesses’ absence was a permissible comment on the evi dence.

Also, we see some defusion from the missing w itness inferenc e in that the prosecutor’s

comments actuall y focused upon the defendant’s credibi lity and n ot directly upon what cou ld be inferred from “missing witness es” about their potential testimony. In this context, we do not believe that the prosecu tor’s argument was2 W e note t hat t he newspaper arti cles ar e not cont ained in t he record . I t i s the def end ant’s o bligation to pre pare an a deq uate reco rd fo r app ellate re view. T .R.A .P. 24

. 7 improperly

prejudicia l to the defendant, and t hus, it did not constitute pr

osecutorial misconduct. See Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App . 1976).

III. INTRODUCTION OF COCA INE The defendant asserts th at the trial court erred by allow ing evi dence of cocaine over

his objecti on regardi ng the adequac y of the chain o f custody. H e argues that the trial court should have either taken judici al notice of newspaper artic les 2 reporting the “desecration” of the Drug Task Force’s evidence vault or given him more time to gather proof regarding the dese cration. W e hold that the trial court did not err by permitti ng the intr

oduction of the cocai ne into evi dence.
At trial, O fficer Greg R obinson testified that he took the pl astic bag t hat he retrieved from the ground near the p layground, sealed it in the appropriate evidence envelopes w ith an evi dence tag, and pl aced it in the evidence v ault. Officer Ro binson identified the pla stic bag and the evidenc e bag containi ng the case number , the charge, the defendant’s name, and t he seals w ith his ini tials on the t ape. He stated t hat he took the evidence bag from the vault and broug ht it to cour t. He said t hat the bag was sealed and had one addi tional piece o f tape on it whi ch was added by the cri me lab.

During th e prosecutor’ s questioni ng of Officer Robin son regardi ng the chain of custody

of the cocaine, a j ury-out he aring was held at w hich defense counsel objected to the admi ssion of the cocai ne, stating that the Drug Task Force had experienced problems with its evidence room. The p rosecutor asserted that def ense counsel wa s referring to article s contained in The Jackson Sun but stated that def ense counsel had no proof of the problem. Th e trial court overruled the defenda nt’s obje ctio n, st atin g that the s tate must esta blish chai n of cust ody.8 Officer Willis testified that the evidenc e was plac ed inside the v ault and that it was not removed until he took it to the crime lab f or analysis. TBI Agent Lisa Mayes tes tified that she received a s ealed, plastic bag of cocaine fro m Officer Willis. She said that after analyzi ng the substanc e, she placed the plastic bag back inside the evidence bag , sealed it, w rote the lab number and her initi als on the bag , and then placed the ev idence inside the evidence vault. At trial, she identified the ev idence and confirmed that the l ab number matched that of the evidence s he analyz ed.

At the motion for new

trial, the defendant argued that the state had failed to establish t he chain of custody of the cocaine. The defendant asserted that the trial court could t ake judicial notice that the Drug Task F orce’s vault was b roken into base d upon the newspap er articl es, but the pros ecutor objected to the introduc tion of the articles. Defense counsel t hen requested t hat more time be al lowed to pr ove that the vault had been broken into, and the prosecutor responded, “We had a trial.” The trial court did not directly rule on either request, but instead stated, “Go ahead.” Defe nse counsel proceed ed to her nex t issue contai ned in the motion for new trial . At the conclusion of the hearing, the trial cour t denied the defendant’s motion for new trial.

A. First, the defendant argues that the trial court erroneous ly allowed evidence of the cocaine because thestate failed to s how the prope r chain of custod y of the cocaine. The state responds that the record d emonstrates that t he testimony of the officers and Agent Mayes suffici ently establ ished the chain of custody. We agree.

Before tangible evidence can be introduced, “a witnes s must be able to identify the evidence or establish an un broken chain of custod y.” State v. Goodman , 643 S.W.2d 375, 381 (Tenn. Crim. App. 1982); Bolen v. State , 544 S.W.2d 918, 920 (Tenn. Crim. Ap p. 1976). The purpos e underlyi ng this r equirement i s “to demonstrate9

that there has been no tampering, loss, subst itution, or mi stake wi th respect to t he evidence.” State v. Br

aden , 867 S.W .2d 750, 759 (Tenn . Crim. App. 1993). However, the identity

of such evidenc e need not be proven beyond all possibili ty of doubt, but rather the ci rcumstances must establish a r

easonable assurance of the identity of the evidence. Ritter v . State , 3 Tenn. Crim. A pp. 372, 462 S.W.2d 247, 250 (1970). Whether the r equ isi te c hain of cu stod y ha s bee n suffici entl y establ ish ed tojus tify admission of ev idence is a matt er committed to t he sound discretion of the trial court, and the trial court’s deter mination wi ll not be overturned in th e absence of an abuse of that discreti on. Goodman , 643 S.W.2d at 381; Wade v. State , 529 S.W.2d 739, 742 (Tenn. Crim. App. 1975 ).

The evidence i n this case i s sufficient to est ablish an unbro ken chain of custody. The t estimony of Officer Robinson, Officer Willis and Agent Mayes establishes a reasonable assu rance that the s ubstance discov ered by Officer

Robinson was the same substance w hich Agent M ayes tested and which w as introduced at trial.

B. Next, the de fendant asserts that the trial court should have taken judici al notice of newspaper articles reporting the de secration of the Drug Task Force’s evidence v

ault. The state contends that the defendant d id not request that the tri al court take ju dicial noti ce at trial but instead waited until th e motion for new trial. The state argues

that the trial court could not take judic ial notice of the articles ab sent a request by the defendant . W e hold that the trial court did not err by failing to take judicial notice of the articles.

Judicial not ice is g overned by Rule 201, Tenn. R . Evid. A trial cour

t may take judicial notice of an ad judicative fact that is “not subject to reaso nable dispute, in that it is ei ther (1) g enerally known w ithin the ter ritorial jurisdic tion of the trial court or ( 2)10

capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably

be questioned. ” Tenn. R. Ev id. 201(a) and (b). A request need not be made for the trial court to take judicial not ice, and such no tice may be t aken at any stage of the proc eedings. Tenn. R . Evid. 201( c) and (e).

Rule 201 does not permit a tri al court to t ake judicial notice of hearsay statements contai ned in the newspaper artic les. Information contained in a new spaper article is not “capable of accurate and ready determination by resort to sources whose accuracy cannot be questi oned.” Rather , the content of newspaper artic les is hear say that does not fall w ithin an ex ception to the hear say rule, and thus is i nadmissible at trial. Tenn. R . Evid. 801, 802 and 803. Whether the vault had been tampered w ith was a matter that was subject to reasonable dis pute, and therefore, t he defendant was required t o prove the fact . The defendant failed to do s o in this cas e.

C. The defen dant contends that the trial court should have given him more time to establi sh the desecrat ion of the Drug Task Force’s vault. H owever , the defendant did not make a request for addit ional time unti l the motion for new trial. Under these ci rcumstances, t he defendant is not enti tled to reli ef. SeeT.R.A.P. 36(a)

. In any event, the defendant has fail ed to establis h that the tria l court abused its discretion in admitting the evidence. W e hold that the trial court did not err.

IV. SENTENCING The defendant asserts th at the trial court erred in sentencing the defendant by failingto consider mitigating factors and by relyin g on enhancement fac tors not p rovid ed by T .C.A . § 40 -35- 114 . He ar gues that the t rial c ourt shou ld ha ve11

imposed the minimum s entence wit h the lowes t level of s upervisi on. The state contends that the t rial court properly sentenced the defendant. We agree.
Appellate review of sentencing is de novo on the record with a presumption that t he trial cour t's determinati ons are correct. T.C.A. § 40- 35-401(d). As the Sentencing Commission Comment s to this sec tion notes, the bu rden is now on the defendant to show that the sentence is improper. T his means that if the trial cou rt followed the statutory sentencing proced ure, made findings of fact that are adequate ly supported in the record, and gave due consideration and proper weight to the fa ctors and principl es that are re levant to s entencing under the 1989 SentencingAct, we may not disturb thesentence even if a different resul t were preferred. State v. Fl etcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991)

.

Howeve r, "the presumpti on of correctness which ac companies the tr ial court's acti on is conditi oned upon the affirmative showing in the recor d that the tria l court conside red the sentenci ng princi ples and all r elevant facts and circumstanc es." State v. Ash by , 823 S.W.2d 166, 169 (Tenn. 1991). In t his respect, for the purpose of
mea ningf ul ap pell ate r eview,

the trial cour

t must place on the record i ts reasons for arriv ing at the final sentenci ng decisio n, iden tify the mitigati ng and enhancement factors found, state t he specific facts supporting each enhancement factor found, and articulate ho w the mitigating and enhancementfactors have been evaluated a nd balanced in determinin g the sentence. T.C .A. §40- 35-2 10(f ) (1990). State v. Jone s , 883 S.W .2d 597, 599 (Tenn . 1994).

Also, in condu cting a de novo review, we must consider (1) the evidence, if any, received at the trial and sentencing hearing, ( 2) the presenten ce repo rt, (3) the principles

of sentencing and arguments a s to sentencingalternatives, (4) the nature and characteristics of the criminal conduct, (5) any mitig ating or statutory enhancement f actors,3 For Class A f eloni es comm it ted on or aft er Jul y 1, 1995, t he presumpti ve sent ence is the m idpo int of the rang e. See T.C.A. § 40-35 -210(c) (Sup p. 1996). 12 (6) any statement that the defendant made on hi s own behalf and (7) the potenti al for rehabilitati on or treatment. T.C.A. §§ 40-35- 102, -103 and -210; see Ashby , 823 S.W.2d at 168; State v. Moss , 727 S.W.2d 229, 236-37 (Tenn. 1986).

The sentence to be i mposed by the tr ial court i s presumptively the mini mum in the range unless there are enhance ment factors prese nt. T. C.A. § 40-35-210(c). 3 Proc edu rally, the trial court is to i ncrease the sent ence withi n the range bas ed upon the existence of enhancement factors and, then, reduce the sentence as appro priate for any mitigating factors. T.C.A. § 40-35- 210(d) and (e) . The weig ht to be afforded an existi ng factor is left to the t rial court 's discret ion so long as it com plies wi th the purposes a nd principles

of the 1989 Sentencing Act and its find ings are ad equa tely suppor ted by the record. T.C.A. § 40-35 -210, Sent encing Commis sion Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W.2d at 169.

Before the sentencing hearing, t he defendant filed a list of mitigating factors for the trial court to consi der. The defendant req uested that the tr ial court consider that:

(1) the defendant’s conduc t neither caus ed nor threatened serio us bo dily in jury; (2) the defendant did not contemplat e that his criminal conduct would caus e or th reat en se riou s bod ily inj ury; (3) the d efend ant, because of his youth, lack ed substantial judgment in committing the offense; a nd (4) the defendant is

attempting to enroll in college. See T.C.A. § 40-35- 113(1), (6) and (13).

At the sentencinghearing, t he then nineteen-year-old defendant testified that he was not worki ng but planned t o attend technical school to stu dy diesel mechanics and auto body repair in the fall. The de fendant conceded that he had not13

enrolled at s chool but asser ted that he had talk

ed to someone at the s chool regar ding enrollment and financ ial aid. H e asserted that he had not looked for a job because of his plans to g o back to school . The defendant said that he was li ving i n Nashvil le with a friend and claimed that his mother was gi ving hi m money to pay the bills. He admitted that he had been con victed of misdemeano r possession of marijuana approximately three to four months earlier.

The presentence rep ort reflects t hat the defendant, a hig h school graduate, did not have any prior felony

convicti ons. It shows that the defendant was arrested when he was sixteen years old for shoplifting and was ordered to participa te in the street law

program. R egarding his employment history , the report states that the only job hel d by the defendant was with t he United Parc el Servi ce over theChristmas holiday as a seasonal employee fo llowing his arrest for the present offe nse. The report also reflects that the defendant denied ha ving any alcohol or d rug abuse pr oblems.

At the conclusi on of the sentencing hearing, t he trial cour t sentenced the defendant to nine ye ars, wi th ninety day s to be served in the county jail and the remaining portion in commun ity corrections. In sentencing the defen dant, the trial court concluded that theonly enhancement factor that appli ed was his previous

history of criminal convictions

or crimina l behavior

. See T.C.A. § 40-35-114(1). The trial court also consider

ed in mitig ation that the defendant w as eighteen years old at thetime he committed the offense. See T.C.A. § 40-35-113(6) (“The de fendant, beca use of his youth . . ., lacked substantial judgment in com mitting the offen se.”).

The defendant argues that the trial court inapprop riately considered the seriousness of the crime for enhanc ement purposes. We note that the enhancement factors set forth i n T.C.A. § 40-35- 114 have been deter mined to be the factor s that may be applied to in crease the leng th of a defendant’s sentenc e. State v. Dy kes , 80314

S.W .2d 250, 258 (Tenn . Crim. App. 1990). W e also note that although the seriousness of the offense is not a factor contained in T.C. A. § 40-35-114, t he 1989 Sentencing Act requires the nature and cha racteristi cs of the crimi nal conduct to be considered for sentencing pur poses. See T.C.A. § 40-35- 210. In this s ense, to the ex tent that the circumstances surrounding the criminal con duct relate to existing enhancemen t factors, those circums tances may have substantial bearing on th e weight that the sentenci ng court places upon a particul ar factor. In any event, thoug h, the record in the present case does not reflect that the tr ial court enh anced the defendant’s s entence based upon the seriousness of the offense . Rather, although the trial court stated the offense was “very agg ravating ” and “terr ible,” it stated that those circumstances were addressed by the penalty involved for the offen se being a Class B felony. Thus, the trial court did not inappropri ately cons ider the cir cumstances of the cr ime for enhancement purp oses.

The defendant also contends that the trial court failed to address the li st of mitigating factors provided by the defen dant before trial. W e disagree. The record shows that the trial court considered but rejected the mitigati ng factors offered by the defendant. We agree with the t rial court ’s decisio n.

Regarding the defendant’s cla im that he deserv ed the minimum sentenc e, we note that t he trial cour t’s decisi on regardi ng the wei ght to be afforded an ex isting factor is dis cretionary

as long as it complies w ith the purposes and principl es of the 1989 Sentencing Act and its findi ngs are adeq uately suppor ted by the record. T.C.A. § 40-35-210, Sentenc ing Commiss ion Comments; Moss , 727 S.W.2d at 237; see Ashby , 823 S.W .2d at 169. W e conclude that the record ad equately supports the trial court’s sentencing dec ision.15 In considerati on of the foregoing and the record as a whole, we affirm the defendant’s judgment of convictio n.

Joseph M. Tipto n, Judge

CONCUR:

David H. Welles, Judge
Jerry L. Smith, Judge