IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 19, 2012

STATE OF TENNESSEE v. HOWARD LAVELLE TATE

Appeal from the Criminal Court for Davidson County

No. 2009-A-75 Steve Dozier, Judge

No. M2010-02555-CCA-R3-CD Filed December 17, 2012

The defendant, Howard Lavelle Tate, was convicted of two counts of the sale of over 0.5

grams of a schedule II controlled substances, both Class B felonies, possession of over 26

grams of a schedule II controlled substance with intent to sell, possession of marijuana, and

possession of drug paraphernalia. The defendant received an effective sentence of fortyseven years. The defendant challenges his convictions, asserting that the trial court erred by

(1) admitting evidence seized from his home without a search warrant; (2) admitting

evidence that was improperly preserved with no established chain of custody; (3) allowing

the State to present inconsistent evidence regarding the substance sold; (4) allowing the State

to add an additional count to the indictment; and (5) ordering consecutive sentences. After

a thorough review of the record, we conclude that the trial court erred in denying the motion

to suppress and the evidence seized as the result of the unlawful search should have been

excluded from consideration by the jury. Therefore, the convictions that resulted therefrom,

possession of drug paraphernalia, possession of marijuana, and possession of schedule II

controlled substance with intent to sell are reversed and remanded. The defendant’s

convictions on two counts of sale of over 0.5 grams of schedule II controlled substance and

sentences are affirmed.

Tenn. R. Ap. P. 3 Appeal as of Right; Judgments of the Criminal Affirmed in Part;

Reversed and Remanded in Part.

JOHN EVERETTWILLIAMS,J., delivered the opinion of the Court, in which JOSEPHM.TIPTON,

P.J., and THOMAS T. WOODALL, J., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Howard Lavelle Tate.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Rachel Marie Sobrero,

Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

I. Factual and Procedural History

The defendant’s convictions are the result of two sales to different confidential

informants. During the first sale on July 18, 2007, the confidential informant purchased

crack cocaine from the defendant outside a business in Madison, Tennessee. The police

observed the sale from a distance and followed the defendant to a gas station. Because

undercover police Sergeant Robert Fidler observed that the defendant had not only a female

passenger in the passenger seat but also an unrestrained child in the back seat, he radioed for

a marked car to stop the defendant; the police consequently discovered the defendant’s

identity and that of his passenger, his wife, Marjorie Sloan.

1

The second sale occurred on July 23, 2007 in the parking lot of a motel in

Goodlettsville, Tennessee, to a different confidential informant. After observing the sale

from a distance, police followed the defendant to his apartment. Detective Yannick

Deslauriers observed the defendant enter one of two apartments but was unable to tell which

one. The defendant left shortly thereafter and went to the parking lot of a Taco Bell.

Detective Deslauriers remained in his vehicle, which was directly in front of the two

apartments he had seen the defendant approach. The defendant returned to the apartment

complex and was arrested in the parking lot. Detective Jeffrey Tharpe testified that he

searched the defendant and recovered the money used to purchase the cocaine; he then read

the defendant his rights. Detective Tharpe testified that during the five to ten minutes that

he was speaking with the defendant in the parking lot, the defendant initially told him that

he did not live at the apartment where he was being arrested but had been visiting his wife.

The defendant then admitted that he lived there. Detective Tharpe testified that Sergeant

Fidler and Detective Deslauriers informed him additional narcotics had been found, and he

decided to take the defendant into the apartment to finish his paperwork. Detective

Deslauriers testified at the suppression hearing that, prior to the consummation of the sale,

police were “somewhat aware of where he was probably going to be laying his head, over

on Berkley Drive.” At trial, he testified that he followed the defendant to the apartment

complex “which we later found out is where he was living.”

The defendant’s wife is alternately referred to as Ms. Sloan and Ms. Tate throughout the record. 1

On the consent to search form, her name appears as “Marjorie D. Sloan,” and her signature gives her name

as “Marjorie Tate / Sloan.” We have decided to refer to her as Ms. Sloan.

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At the suppression hearing, Detective Deslauriers testified that during the arrest, he

could see Ms. Sloan look out the window of the apartment towards the area of the parking

lot where the defendant was being arrested. He testified that she then “ran into a back

bedroom.” Detective Deslauriers alerted Sergeant Robert Fidler, who testified that he was

afraid Ms. Sloan would destroy evidence located inside the home. Detective Deslauriers

asked Sergeant Fidler, who had the defendant’s house key, to accompany him to the

apartment. Detective Deslauriers testified that they knocked on the door, did not receive an

answer, and entered, using the defendant’s house key, which was in Sergeant Fidler’s

possession. Sergeant Fidler also testified that they knocked and announced they were the

2

police and that Ms. Sloan did not open the door, although he did not remember if the door

was unlocked or if the police used the defendant’s key to enter. Ms. Sloan came towards the

doorway and met the police after they had entered her home. She cooperated with them and

took Sergeant Fidler to a bedroom where he recovered a crown royale bag containing four

bags of a white, rock-like substance. She also showed him a container with two bags of

marijuana and a small bag of powder cocaine. Ms. Sloan then pointed out a kitchen drawer

which contained two sets of digital scales. Ms. Sloan signed a consent to search after the

police had recovered the evidence. A marijuana grinder and pipe were also recovered from

the living room.

At the time of the suppression hearing, the defendant had not been charged with any

crimes related to the July 18, 2007 sale. The defendant’s counsel cross-examined Detective

Deslauriers at the suppression hearing regarding prior testimony he gave that the July 23,

2007 sale had occurred in Madison, Tennessee. Detective Deslauriers testified that he had

probably been confused because the police had monitored multiple sales made by the

defendant, and the defendant’s attorney objected to the testimony. The defendant’s attorney

also objected to Detective Deslauriers’s testimony that he recognized Ms. Sloan from prior

sales. In 2009, a new indictment was returned, charging the defendant with one additional

count of sale of a controlled substance occurring on July 18, 2007.

At the suppression hearing and at trial, the defendant explored various inconsistencies

in the State’s evidence. The defendant questioned the witnesses regarding the money used

to purchase the cocaine. At the hearing, Detective Deslauriers testified that during the July

23 sale, he provided previously photocopied buy money to the confidential informant. Based

on the photocopy, he testified that he believed he gave the informant $100. Detective

Deslaurier and Sergeant Fidler testified that if the buy money was not recovered, officers

would have to fill out a 330 form, but if it was recovered, they would not. Detective

On cross-examination, Detective Deslauriers stated that the supplemental report did not indicate

2

Sergeant Fidler used a key to enter the home and that this was a mistake, and that his prior testimony at a

preliminary hearing that Ms. Sloan gave consent to enter the home was also a mistake.

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Deslauriers testified that the police would photocopy sheets of money and circle the bills

being used in a particular transaction. Sergeant Fidler testified that he checks out five to ten

thousand dollars at a time. Detective Deslauriers testified that he believed that the five

circled $20 bills were given to the informant. A photocopy of four $20 bills recovered from

the defendant was included in the exhibits from the hearing. At trial, Detective Tharpe

testified that the money might have been “marked and it could have been that we were going

to attempt to buy more from the defendant, just check and see if he had any additional on him

at the time of the buy.” Both officers ultimately testified that the purchase was $80 worth of

cocaine. Detective Tharpe acknowledged that he did not in the paperwork distinguish the

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buy money from the total sum of $651 which was seized from the defendant’s person upon

arrest. The photocopies were introduced at trial, but the actual cash was not.

The defendant also explored inconsistencies in the evidence regarding the substance

purchased on July 23, 2007. After meeting the defendant on July 23, 2007, the confidential

informant returned with what Detective Deslauriers testified was a yellow rock substance

which field tested positive for cocaine. Detective Deslauriers testified that he might have

put it in an evidence bag but probably put it in the cup holder of his car. All of the

paperwork and the testimony of both officersreflect the fact that the substance wasrock-like.

Denotria Patterson, a forensic scientist at the Tennessee Bureau of Investigation,

testified at both the suppression hearing and the trial. According to Ms. Patterson’s notes,

she received as evidence in the defendant’s case one large plastic bag containing four smaller

bags containing a total of 111.1 grams of rock-like cocaine, two plastic bags containing 2.8

grams of powder cocaine, and two plastic bags containing 11.2 grams of marijuana.

Detective Deslauriers acknowledged he had never previously identified the substance bought

by the informant as powder cocaine. At trial, Ms. Patterson stated she initially classified the

substance as powder based on a visual inspection; she also testified that crack cocaine may

sometimes come in a “fine powder” and that the bag of purchased cocaine was not the same

texture as the bag of powder cocaine recovered from the apartment because it was more

compressed rather than a loose powder. At the suppression hearing, both Detective

Deslauriers and Detective Tharpe testified that they had previously seen powder cocaine in

a compressed form, in which it would appear to be a white or yellowish rock substance.

Detective Deslauriers and Sergeant Fidler testified that because an incident report or property

sheet only has one place to identify the location, the location of evidence would have been

 Detective Deslauriers, when confronted with the “before” photocopy at the suppression hearing, 3

testified that he believed the purchase was for $100 of cocaine. At trial, he testified that he understood the

deal to be “either a hundred or $80 worth of crack cocaine. And it was $80 worth of crack cocaine that we

were to purchase that day.” Detective Tharpe testified at trial the purchase was for $80 of cocaine. The

transcript, also shows he stated that “$88 of [the recovered money] was the photocopied buy money.”

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filled out as the defendant’s address even though the sale took place at the motel.

The defendant also questioned witnesses regarding discrepancies in the weight of the

narcotics. Detective Tharpe testified that his supplemental report included the cocaine

purchased July 23, 2007, which was described as 2.0 grams of a yellow rock substance; this

report was not in evidence. An inventory of seized property likewise had the weights

recorded, identifying a large plastic bag with four smaller bags of cocaine weighing 29.9

grams, 28.8 grams, 29.3 grams, and 29.2 grams; two bags of marijuana weighing 4.0 and 7.8

grams; and one bag of white powder weighing 2.1 grams. The bag of cocaine obtained from

the informant is listed without a weight. Detective Tharpe testified he added the weight of

the cocaine obtained from the informant to the crack cocaine recovered from the apartment

to arrive at the totals listed on a notice of property seizure which identified the drugs as 118.5

grams of crack cocaine, 2.1 grams cocaine, and 11.8 grams marijuana. Ms. Patterson, on the

other hand, classified 111.1 grams as crack cocaine; this did not include the substance

obtained from the informant. Ms. Patterson testified she weighed the narcotics without the

plastic bags. Ms. Patterson weighed the bags she had classified as powdered cocaine, and

recorded weights of 1.08 grams and 1.8 grams.

At the conclusion of the trial, the jury found the defendant guilty on all counts, and

the trial court sentenced him to serve twenty-four years in prison for the sale of a controlled

substance in count one; twenty-four years for possession with intent to sell over 26 grams of

a schedule II controlled substance in count two; four years for possession of marijuana in

count three; 11 months and 29 days for possession of drug paraphernalia in count four; and

twenty-three years for the second count of the sale of over 0.5 grams of a schedule II

controlled substance. The court ordered the two counts for sale of a controlled substance to

be served consecutively for an effective sentence of forty-seven years. The defendant

appeals his convictions and sentences.

II. Analysis

A. Warrantless Search

The defendant asserts that the trial court erred in failing to suppress the narcotics and

drug paraphernalia recovered during the search of his apartment. The defendant argues that

there was no exigency because officers did not have a reasonable belief in the existence of

exigent circumstances and because any exigency was created by the police officers

themselves. The State countersthat Ms. Sloan’s movements created an exigent circumstance

which justified the warrantless entry.

A trial court’s factual findings on a motion to suppress will be upheld on appeal unless

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the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

Questions about the “credibility of the witnesses, the weight and value of the evidence, and

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of

fact.” Id. Furthermore, the prevailing party “is entitled to the strongest legitimate view of

the evidence adduced at the suppression hearing as well as all reasonable and legitimate

inferences that may be drawn from that evidence.” Id. “When the trial court’s findings of

fact are based entirely on evidence that does not involve issues of witness credibility,

however, appellate courts are as capable as trial courts of reviewing the evidence and

drawing conclusions and the trial court’s findings of fact are subject to de novo review.”

State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007). Furthermore, this court is not bound by

the trial court’s conclusions of law. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002).

The application of the law to the facts is reviewed de novo on appeal. State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997).

Both the Fourth Amendment of the United States Constitution and Article I, section

7 of the Tennessee Constitution guard against unreasonable searches and seizures. The

purpose of these prohibitions is to “‘safeguard the privacy and security of individuals against

arbitrary invasions of government officials.’” Randolph, 74 S.W.3d at 334 (quoting Camara

v. Mun. Court, 387 U.S. 523, 528 (1967). A warrantless entry into a home is “presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). Furthermore, “Tennessee

cases have been somewhat more restrictive in construing Article I, § 7 of the State

Constitution than have federal cases construing the Fourth Amendment.” State v. Jennette,

706 S.W.2d 614, 620 (Tenn. 1986).

Exigent circumstances, however, provide an exception to the warrant requirement.

Berrios, 235 S.W.3d at 104. “Exigent circumstances arise where ‘the needs of law

enforcement [are] so compelling that the warrantless search is objectively reasonable under

the Fourth Amendment.’” State v. Meeks, 262 S.W.3d 710, 723 (Tenn. 2008) (quoting

Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)). One such exigency is the imminent

destruction of evidence. Meeks, 262 S.W.3d at 723. To justify a warrantless search,

circumstances must give rise to “an objectively reasonable belief that there was a compelling

need to act and insufficient time to obtain a warrant.” Id. The exigency of the circumstances

is evaluated based upon the totality of the circumstances known to the State at the time of the

search, and the State must rely on specific and articulable facts and the reasonable inferences

to be drawn from them. Id. at 723-24. The circumstances are exigent only when the search

is imperative. Id. at 723. The State bears the burden of showing the exception to the

warrant requirement. Berrios, 235 S.W.3d at 105.

In State v. Carter, 160 S.W.3d 526, 532 (Tenn. 2005), the Tennessee Supreme Court

found that police had created the exigency “by approaching the defendants’ residence and

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alerting the defendants to the presence of the deputies.” Accordingly, the Court concluded

that the search violated both the federal and state constitutions. In Kentucky v. King, 131

S.Ct. 1849 (2011), however, the United States Supreme Court rejected an interpretation of

the United States Constitution that would discount an exigency which came about as a result

of police knocking on the door of a residence and announcing their presence. Under federal

constitutional safeguards, an exigency becomes police-created only when the government

engages or threatens to engage in conduct that violates the Fourth Amendment. Id. at 1858.

However, we need not consider whether the Tennessee Constitution provides broader

protection than the United States Constitution on this point, because we find that the State

failed to carry its burden of proving an exigency.

We begin with the fact-specific inquiry regarding what circumstances are sufficient

to justify the police in concluding that evidence is in imminent danger of destruction. The

Seventh Circuit has concluded that

[t]he sound of someone walking around, for example, or a voice that

announces, “The cops are here,” is not enough by itself. But other sights and

sounds – toilets flushing, a door slammed, people running, an obvious lie by

the person answering the door, or efforts to remove contraband from the house

– may be evidence that there is an emergency that calls for an immediate,

warrantless intrusion.

United States v. Etchin, 614 F.3d 726, 734 (7th Cir. 2010).

After the United States Supreme Court in King concluded that a police-created

exigency required an actual or threatened violation of the Fourth Amendment, the case was

remanded to the Kentucky Supreme Court, which found that there were no exigent

circumstances, as police had merely smelled marijuana, knocked and announced their

presence, and heard “things being moved.” King v. Commonwealth, __ S.W.3d __, 2012 WL

1450081, at *1 (Ky. 2012). “In fact, the sounds as described at the suppression hearing were

indistinguishable from ordinary household sounds, and were consistent with the natural and

reasonable result of a knock on the door.” Id. at *3; see also, e.g., United States v. Delguyd,

542 F.2d 346, 351-52 (6th Cir. 1976) (finding rustling noises and toilet being flushed

sufficient to show exigent circumstances); Stackhouse v. State, 468 A.2d 333, 342 (Md.

1983) (finding circumstances were not exigent when the defendant’s sister, who had lied to

the police, was present in the home). But see United States v. Gardner, 553 F.2d 946, 948

(5th Cir. 1977) (concluding that circumstances were exigent when five police cars arrived

and several officers arrested the defendant outside the home and police knew that someone

who might be the defendant’s wife and partner in the drug trade was in the home).

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Whether exigent circumstances were present here is a close question. Detective

Deslauriers observed Ms. Sloan look out the window at the parking lot where the defendant

was being detained. He recognized Ms. Sloan as the individual who had been the passenger

in the car on a previous drug sale. Ms. Sloan went towards the back of the apartment.

Nevertheless, “the totality of the circumstances known to the State at the time of the search”

do not support a conclusion that exigent circumstances compelled the warrantless search.

At the time of the entry, police did not know that the apartment was the defendant’s

residence, although they knew that he had visited either that apartment or the one beside it.

They did not know that narcotics were present in the apartment, although they knew that he

had stopped at the apartment after selling drugs to the confidential informant and before

encountering another individual in the parking lot of a Taco Bell. Although they may have

suspected that the defendant had obtained drugs from a residence at the complex, and while

they may have suspected that the residence he had stopped at was the one in which Ms. Sloan

could be seen, mere speculation is inadequate to show exigency. Meeks, 262 S.W.3d at 723.

However, and most importantly, Ms. Sloan’s actionsinside the home were ambiguous.

Because police had not approached the apartment, there was no reason to think that she was

attempting to elude capture or destroy evidence. Detective Deslauriers’stestimony describes

her moving from the front of her home to the back. Such an action is “indistinguishable from

ordinary household” movements. King v. Commonwealth, 2012 WL 1450081, at *3. “The

government has presented no evidence that, like mink devouring their young when they hear

a loud noise, criminals always (or at least in the vast majority of cases) set about to destroy

evidence whenever the police knock on the door.” United States v. Collins, 510 F.3d 697,

700 (7th Cir. 2007) (concluding there were no exigent circumstances when an occupant was

heard to observe, “The police are at the door,” and movement was heard in the home). We

conclude that Ms. Sloan’s act did not threaten the imminent destruction of evidence and

officers did not have an objectively reasonable belief that there was a compelling need to act

or that a search was imperative. Accordingly, the State has not shown exigent circumstances

which justify the warrantless entry.

The exclusionary rule bars evidence either directly or indirectly obtained from an

unconstitutional search or seizure. See Wong Sun v. United States, 371 U.S. 471, 488 (1963).

The State does not argue that Ms. Sloan’s consent was obtained independently of the

warrantless entry therefore, the evidence seized from the defendant’s residence must be

suppressed. Accordingly, the defendant’s three convictions that resulted from the evidence

obtained from the residence are reversed and remanded.

Further our review reveals that the constitutional error ( resulting in the reversal of three of

the defendant’s convictions) was harmless beyond a reasonable doubt in reference to the

defendant’s two convictions for selling schedule II controlled substances. Evidence

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presented in these two convictions came from confidential informants, police officers and

proof of the substance sold. The two sales were not associated with the defendant’s

residence and one occurred at a different time and place.

B. Improperly Preserved Evidence

The defendant claims the trial court erred by allowing the introduction of evidence

that was improperly preserved and had no established chain of custody. The defendant

asserts that under State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999), the State had a duty

to preserve both the buy money and the narcotics supporting the conviction for sale of a

controlled substance in count one. He contends that the State failed to preserve the narcotics

when Detective Deslauriers placed the bag into the cup holder of his car; when the police

listed the defendant’s home address rather than the motel as the location on the report;

because of a discrepancy in weight; and because of Ms. Patterson’s report classifying the

narcotics as powder rather than crack. The defendant further claims that the State failed to

establish a proper chain of custody for the narcotics. In addition, the defendant claims that

the buy money was inadequately preserved because no officer testified to having generated

the copy of the buy money made prior to the July 23 sale; because the police, rather than

setting aside the money recovered from the defendant, created a photocopy, and because of

Detective Deslauriers’ testimony at the suppression hearing that he believed he gave $100

to the informant. The State counters that this issue is waived.

The State correctly notes that, in his motion for a new trial, the defendant limited this

issue to the “buy money.” His written motion refers only to the evidence admitted regarding

the money recovered from the defendant, and at the hearing, defense counsel limited his

argument to the “buy money.” Moreover, while the defendant raised the issue at the

suppression hearing, the trial court specifically deferred hearing it. Both parties then briefed

the issue, but the trial court, in its order denying the motion to suppress, twice noted that the

parties had agreed to resolve the chain of custody and Ferguson issues “at trial or in a

separate motion hearing.” No separate hearing is part of the record. At trial, the defendant

did not object to the introduction of the photocopied cash which the police had used to

purchase the narcotics. The narcotics related to the July 23 sale were likewise introduced –

first marked for identification purposes during the testimony of Sergeant Fidler, and then

introduced into evidence during the testimony of Detective Deslauriers. The defendant raised

no objection. Likewise, the defendant did not object to evidence based on chain of custody

at trial. “This Court is not bound to grant relief to a party who fails to take ‘whatever action

was reasonably available to prevent or nullify the harmful effect of an error,’” by neglecting

to lodge a timely objection. State v. Hugueley, 185 S.W.3d 356, 369 (Tenn. 2006) (citing

Tenn. R. App. P. 36(a)). The trial court did not make any findings required in Ferguson

because the issue was not heard until the cursory examination in the motion for a new trial.

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We conclude that the issue is waived.

C. Inconsistent Evidence

The defendant next asserts that it was error to allow evidence regarding the substance

supporting count one because of inconsistent testimony regarding the weight and form of the

substance. In his argument, defense counsel confuses the 0.9 grams recovered from the July

18, 2007 purchase with the substance recovered from the July 23, 2007 purchase. Detective

Tharpe testified that the cocaine purchased on July 23, 2007 was approximately 2 grams, and

that this cocaine was added to the bags containing 29.9 grams, 28.8 grams, 29.3 grams, and

29.2 grams of cocaine recovered from the apartment for a total of 118.5 grams sent to the

laboratory for testing. The paperwork also reflects that 2.1 grams of powdered cocaine

recovered from the apartment was sent to the lab for testing. Ms. Patterson classified the

purchased cocaine as powder and found that the bags of powdered cocaine weighed 1.08

grams and 1.8 grams. She did not identify which weight was associated with Exhibit 10

containing the substance recovered from the informant.

While the defendant brought out these discrepancies on cross-examination in order

to cast doubt on the reliability of the State’s proof, the defendant did not object to the

testimony of Detective Tharpe or any other witness or to the introduction of the evidence.

4

Tennessee Rule of Evidence 103(a)(1) precludes error premised on a ruling admitting

evidence unless “a timely objection or motion to strike appears of record, stating the specific

ground of objection if the specific ground was not apparent from the context.” Furthermore,

the defendant cites to no authority showing that evidence must be excluded because it

contains some inconsistency. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not

supported by argument, citation to authorities, or appropriate references to the record will be

treated as waived in this court.”). We conclude that the State correctly argues that this

argument is waived. These inconsistencies in the evidence go to its weight rather than

admissibility.

D. Prosecutorial Misconduct

The defendant also alleges that the return of a second indictment with the addition of

count five (relating to the July 18, 2007 sale) was prosecutorial misconduct which could have

affected the verdict to the prejudice of the defendant. As the State correctly points out,

however, the defendant cites no authority that the State may not initiate a valid prosecution,

While the defendant correctly identified the agent responsible for testing the substance of the July 4

23, 2007 sale, the State’s brief addresses the admissibility of the testimony of the agent who conducted

testing on the crack cocaine recovered on July 18, 2007.

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and nothing in the record shows the defendant alleged misconduct at the trial level prior to

asserting it as a ground for relief in his motion for a new trial. In fact, the defendant

repeatedly objected to the admission of evidence related to the July 18, 2007 sale at the

suppression hearing on the grounds that the defendant had not been charged with the crime

that was ultimately added as count five. This issue is without merit.

E. Consecutive Sentencing

At the sentencing hearing, the State argued that consecutive sentences should be

imposed based on the defendant’s extensive criminal history and the fact that he was a

professional criminal. See Tenn. Code Ann. § 40-35-115. The defendant argued for

concurrent sentences, noting that “while [the defense] cannot disagree that [the defendant]

has been in an amount of trouble basically since he turned 18,” the defendant’s criminal

activity had not been violent for approximately twenty years. The trial court made no

findings at the sentencing hearing, but in a written order directed counts one and five to be

served consecutively.

Tennessee Code Annotated section 40-35-115 permits the imposition of consecutive

sentences if the court finds by a preponderance of the evidence that one of several factors

applies, including that the defendant is an offender whose record of criminal activity is

extensive or is a professional criminal who has knowingly devoted his life to criminal acts

as a major source of livelihood. See Tenn. Code Ann. § 40-35-115(b)(1)-(2). While the trial

court did find that the defendant had a previous history of criminal convictions as an

enhancement factor, the court never made the findings mandated by Tennessee Code

Annotated section 40-35-115. We review the imposition of consecutive sentences for an

abuse of discretion, State v. Hayes, 337 S.W.3d 235, 266 (Tenn. Crim. App. 2010), and “a

presumption of reasonableness should be afforded to a sentence within the appropriate

statutory range,” State v. Bise, __ S.W.3d __, No. E2011-00005-SC-R11-CD, 2012 WL

4380564, at *18 (Tenn. 2012).

We conclude that the record supports the trial court’s decision to impose consecutive

sentencing. The trial court’s order, although not explicitly characterizing the defendant’s

criminal history as “extensive,” notesthe defendant has been convicted of three prior felonies

and nine misdemeanors and admitted involvement in other drug sales. The defendant

acknowledged that he had a lengthy criminal history. Accordingly, the imposition of

consecutive sentences wassupported by the defendant’s extensive record of criminal activity.

Furthermore, the record demonstrates that the defendant knowingly devoted his life to

criminal acts as a major source of livelihood. The defendant points to three jobs he has held,

but none of them lasted for more than a few months and only one predates the offenses.

Detective Tharpe’s testimony at trial was that the defendant admitted selling cocaine and

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stated that he did it to support his family financially. At trial, the State introduced into

evidence certain telephone calls made by the defendant, in which he admitted selling drugs

and stated he was “zoned in on money.” Although we reversed and dismissed three charges

, we nevertheless conclude that the record supports consecutive sentencing on the two sale

convictions..

CONCLUSION

Based on the foregoing reasoning, we conclude the trial court erred in admitting the

evidence recovered from the defendant’s home without a search warrant. Therefore, the

three convictions that resulted therefrom are reversed and remanded. The defendant’s two

Class B felony convictions are affirmed as well as the consecutive sentences.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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