### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Februar y 11, 2 003 Session
STATE OF TENN ESSEE v. BRAND ON RONALD C RABTREE
Direct Appeal from the Criminal Court for Wilson County Nos. 00-0848, 00-0849, & 99-0489 J. O. Bond, Judge

No. M2002-01470-CCA-R3-CD - F iled May 30, 2003

Following a jury trial, De fendant, Brandon Ronald Crabt ree, wa s found guilty of ( 1) selling marijuana, a Schedule VI controlled substanc e in an amount of not less than one-half ounce nor more than ten pound s, a Class E felony , and (2) selling

a counte rfeit controlled substance, a C la ss E fel on y. After a sentencing he aring, Defend ant was se ntenced to two years f

or each conviction, and the trial court ordered t

he s entences to be served consecutively . The trial court also determined at the sentencing hearing that Defendant wasthen (or at that time) on probation for a prior conviction and that Defendant

was in violation of that

probation. The trial court revoked Defenda nt's probation and ordered the original sentence of eighteen months to run consecutively to the se ntences imposed for the two felony convictions for an effective sentence of five and o ne-half y ears. I

n his appe al, Defendant

does not c ontest his conviction for selling a Schedule VI controlled substanc e. However, Defendant

contends that the evidence was insufficient to sustain hi s conviction f or the sale of a counter feit controlledsubstance. Defendant also challeng es the length of his sentences arg uing that the trial court fa iled tofollow the principles of the Tennessee Criminal Sentencing Reform Act of 1989 and failed to properly weigh mitigating and enhanc ing factors. After a caref ul review of the record, we affirm Defendant's c onviction for the sale of a counterfeit controlled substance and a ffirm the trial court’sjudgmen

ts as to Defendant ’s sente nces. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

T HOM AS T. W OODA LL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J OE G. R ILEY , JJ., joined.

Lawrence Alan Poindexter, Lebanon, Tennessee, f or the appellant, Brandon Ronald Crabtree.

Paul G. Summers, Attorney Gene ral andReporter; Helena Walton Yarbrough, Assistant Attorney Genera l; Tom P. Thompson, Jr., District Attorney General; David Dur h am , Assistant District Attorney Genera l; and Br ian Fulle r, Assista nt Distric t Attorne

y General , for the

appell ee , State of Tennessee.-2- OPINION 1. Sufficiency of the Evidence

Becau se Defendant does not challenge the suf fi ciency of the evide

nce per taining to his conviction for the s ale of ma rijuana , we will outline only those facts involving the transaction which led to his arrest for the sale of a counterfe it controlled substance. During part of 2000, John Welch workedas an inf

ormant fo r the Wilson

County Sheriff 's Depa rtment. On March20 of that year , Mr. Welch called Detective John Edwards an d i nformed him that he could purchase ecstacy from Defendant. Ecstacy

is a common street name for MDMA, a Schedule I controlled substance. See Tenn. Code Ann. § 39- 17-406(f )(2). L ater tha t evening , Mr. Welch met Detective Edw ards, Detective Sergeant John Lafevor , and DetectiveDiane Murray at a secure location. After Mr. Welch and his vehicle were searched for drugs, money

and weapons, Mr. Welch paged Defen dant on Detective Edwards’ cell phone. Defendant re sponded to the page three or four minutes later and arranged for Mr. We

lch to mee

t Defend ant at his r

esidenc e. The te

lephone conv ersation was record ed, and D etective

Murray also wired Mr . Welch wit h a trans mitter pr

ior to his meeting

with Defend ant. Detective Edwards gave Mr. Welch $100 to make the b uy, and he a nd the other detectives then followed Mr. Welch to Defendant’s house.

Mr. Welch test

ified tha t h e aske d D ef

en da nt ov er th e t el ep ho ne fo r fou r “ hi ts ” o f e cs ta cy. In response to his request, Defendant told Mr. Welch that "it" was mixed with heroin and that it was in powder form, not a pill. When Mr. Welch arrived at Defendant’s r esidence, someone other than Defendant

opened the door. Six or s even pe ople wer e inthe house, and the capsules were ly ing on the table in a baggie. Mr. Welch picked up the caps ul es an d h an de d D ef en da nt th e m on ey. Defendant

again pointed out to Mr. Welch th at the dr ugs wer e not “re gular”

because they were in powder form. However, Mr. Welch had never ta ken ecst asy and did no t know wha

t ecstac y no

rmally looked like.

Once the purchase was completed, Mr. Welch drove back to the secure location followed by Detect ives Laf

evor and Murray . Detec tive Edwa rds rema ined on sur

veillanc e at Def

endant’ s residencefor a few minutes in case one of the occupants tried to follow Mr. Welch. Detective Edwards then proceeded to the secure l ocati on where Mr. Welch and his vehicle were sea rched again.

The substance purchased by Mr. Welch consisted of a brown powder packaged in clear
ca psules. At the time

of the tra

nsaction , Detec tive L afevor had bee n with the Wi lson Co unt y Sheriff’s Department’s narcotics division for about two ye ars. When he first observed the capsules purchased

from Def endant, D etective

Laf evor sai d that they did not resemble a ny type of ec stacy he had seen before and surmi sed that th

e capsul es were

diet suppl ements.
Detective Edwards, the lead investigator on the case , had worked in the na rco tics division sin ce around the end of 1997 and was promoted to an investigator position in 1999. Det ectiv e Edwards testifie d that he h ad attended vari ous class es perta in i ng to narcotics and criminal-3-

investigations and drug identification. He was also certified as a narc otics canine handler. Based
on his experience in narcotics inves tigation , Detec tive Edwa rds said that ecs tacy

was usua lly s old in tablet form with a corporate logo such as the log os used by Mitsubishi and Mercede s embossed
on the surface of the tablet. Detective Edwa rds testified that

ecstacy was also foundin powder form, and he ha d heard t hat the dr ug coul d be foun d in liquid f orm. Kathy Carmen, a

forensi c drug chemist for the Tennessee B ureau of Investigation, testified
as an expert

on the che

mical ana lys is of nar

cotics. Ms. Carmen testifiedthat the substance received fr om Defendant was a brown powder pa ckaged in clear capsule s which did not contain any controlled substanc es.
On the basis of this evidence, the jury found Defendant guilty

of sel ling a counter

feit controlledsubstance under Tennessee Code Annotated section 39-17-423. In his appeal, Defe ndant argues that the Stat e failed to prove that the capsules sold by Defendant to Mr. Welch were substantia lly similar in color, shape, size and markings to ecstac y, the drug he was pu

rported ly selli ng. Defend ant conte

nds that the evidence is insufficient to sustain his conviction because the State failed to prove this element of the offense.

When a defendant challenges the suf ficiency of

the convicting evidence, we must review the evidence in the lig

ht most fav orable t

o the prosecution in determining whether a rational trie r of fact could have fou nd all the essentia l element s of t he crime bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 27 89, 61 L . Ed. 2d 560 (1979). O nce a jur

y f inds a defendant gu il ty, his or her

presumpt ion of inno cence i s remove d and rep laced w ith a presumption of guilt. State v. Black , 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of overcoming this presumption, and the State is entitled to the strongest legitimate v iew of the evidence along with al l reasonable inferences which may be drawn from that evidence. Id.; Stat e v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have r

esolved a ll conflicts and drawn any

reasonable inferences in favor of the State. State v. S

heffield , 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credib ility of witnesses, the weig ht and value to be given the evidence, and all factual issues raised b y the eviden ce are resolve d by

the trier of fact and not thi s court. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

As relevant in this case, a per son commits the offense of selling a counterfeit controlled substance if he or she represents the substance to be a c ontrolled substance and the substan ce “i s substantia lly similar in c olor, sha

pe, size, a nd markin gs or la

ck there of, to a Sc

hedule I, II, III or IV controlledsubstance . . . in orderthat the substance may be sold as a controlled substance. Tenn. Code Ann. § 39- 17-423. I n respons e to Mr. Welch’s request for ecstacy , Defendant told Mr. Welch
on two separate occasions that “it” was in powder r ather than tablet form, and that the powder also containedheroin. D etective Edwardstestifie d that although ec sta cy was usually sold in tablets which
were embossed

with a “tr endy ” corpor

ate log o, ecsta

cy is also found in powdered form. He further stated that ecstacy

is distributed in a variety of wa ys.-4-

Defendant

argues that this evidence is insufficient to sustain a conviction beca use the testimonyfails to e stablish a substantia

l similarit y be tween the substanc e sold

by Defe ndant and the drug ecstacy . We disagree. Detective Edwards, based on his experience in narc otics, testified that ecstacy was sold in powdered as well as tablet form. This court has previously he ld that a narcotics officer may testify

that a particular substance is substantially similar to acontrolled substance. State
v. Carey , 914 S.W.2d 9 3, 96 (Te nn. Crim. A

pp. 1995) ; see also State v. Anderson , 644 S.W.2d 423, 424 (Tenn. Crim. App. 1982) (A law enforcement off icer experienced in narcotics investigation may testify as to the ident

ity o f a contr

olled subs tance) . It isthe jury’s duty to decide the credibility of witnesses and the weight to be given their testimony , and it is obvious that the jury accr edited the testimonyof Detective Edwards. Although brief, the testimony presented in this matter provide d a sufficient basis upon which a rational jury could find Defendant guilty of selling

a counte rfeit substanc e beyond a rea sonable d oubt. This i ssue is wit

hout merit

. 2. Sentencing Issues

Defe ndan targues next that the trial court erred in sentencing him. When a defendant challenges the length or the manner of service of his or her sentence, this Court must conduct a de
novo review with a presumptionthat the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d ); State v. I

mfeld , 70 S.W.3d 698, 704 (Tenn. 2002). This presumption, however, is contingent upon an affirmative showing in the record tha t the trial court considered the sentencing principles and all relevant facts and circumstanc es. State v. Pettus , 986 S.W.2d 540, 543- 44 (Tenn. 1999). If the r

ecord fails to show such

consideration, the review of the sentence is purely de novo

. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its sentencing de terminat io ns the t rial court must consider: (1) the evidence presented at the trial and sentencing hearing ; (2) the pre-sentence repor t; (3) the pr inciples of
sen tencing and arguments as to sentencing a lternatives; (4) the nature and characteristics of th e criminal conduct ; (5) any a ppropriate enhancement and mitigating factors; (6) the defendant’s potential or lack o f potentia l for reh abilitatio n or trea tment; and

(7) any statemen ts made b y Defendant

on his own b ehalf. Tenn. Code Ann. §§ 40 -35-103 a

nd -210; State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995). If the trial c ourt has imposed a lawful sentence b y following the statutory sentencing procedure, given due consider ation an d proper weight to the factors and sentencing principles, and made findings of fact adequately supported by the record, this Courtmay not modify

the sentence even if it would have pr ef erred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). T he defendant bears the burden of showing that his sentenceis improper. Tenn. Code Ann. § 40-35-401(d) Sentencing Commission Comments; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). A. Alternative Sentencing
First, Defendant

contendsthat the tr

ial cour t erred in not gra ntin g him al ternat ive se ntenc ing. Defendant

was convicted of thesale of ma rijuana of not les s than one -half

ounce nor more than ten pounds and sale of a counterfeit controlled sentenc e. Both offenses are Class E felonies. Defendant-5-

was sentenc ed to two years a s a Range I sta ndard offender

for eac h felony convicti on. An esp ecially mitigatedor standa

rd offe nder con victed of a Class C, D or E fel ony who does not fall within the category of offenders for whom

incarc eration

is a prior ity i s presume d to be a f

avorabl e candid ate for alternative sentenc ing in the absence of evidence to the contra ry. Tenn. Code Ann. § 40- 35- 102(6). Unless suff

icient eviden ce rebu

ts this pre sumption, th

e trial c ourt must pr

esume “t hat a sentence other than incarceration would r esult in successful rehabilitation.” State v. B yrd , 861 S.W.2d 377, 379-80 (Te nn. C rim. App. 1 993); see also Tenn. Cod e Ann. § 40 -35-303( a). As a standardoffende

r convic ted of a Cl ass E felony, De fendant is presumed to bean elig ible candidate for al ternat ive se ntenc ing.
However, not all eli gible of fender s are en

ti tl ed to alternative sentencing. The statutory presumption of an alternative sentence may be overcome if:
(A) [c]onfinem

ent is nec essary

to protect society by

restraining a defendant who has a long h istory of crimin al conduc

t; (B) [c]onfinement is necessary to avoid depreciating the serio usness of the offe nse or confinement is particularly suited to provid e an effective deterre nce to others likely to commit similar offenses; or (C) [m]easure s l ess restrictive than confinement have freque ntly or rece

ntly been applied unsuccessfully

to the defendant. . . .

Tenn. Co de A nn. § 40 -35 -10 3(1 ). In determining which sentencing alternative is appropriate f or a defenda nt, the trial

court ma

y a lso consid

er the de fendant ’s potent

ial or lac k of poten

tia l f or rehabilitation as well as any relevant mitigating and enhancing fa ctors. Id. §§ 40-35-103(5), -113, -114, -2 10 (b )( 5) . S en te nc in g i s h ig hl y i ndividual ized and mu st be dete rmined on

a case- by- case basis based on the facts and circumstances of the ca se and the defendant before the court. State v. Dowdy , 894 S.W.2d 30 1, 305 (Te nn. Crim. A

pp. 1994) ; State v. M

oss , 727 S.W.2d 229, 235 (Tenn. 1986).

Defendant

argue s that the t

rial cou rt faile d to adher

e to the se

ntencing principle s and to consider the fac ts and cir

cumsta nc es peculiar to Defendant’s case in its discussion of alterna tive sente ncing. Furthermore, although the trial court discussed the possibility of full probation, it failed to consider any

other form of alter

native sentenc ing such

as split co nfineme

nt which in

cludes a period of incarceration followed by probation for the remainder of the sente nce or pa rticipat ion in the community corrections program.

With certain exceptions, a defendant whose imposed sentence is eight ye ars or le ss is eligib le for probation. Tenn. Code Ann. § 40-35-303(a). Even though elig ible, however, a defendant is not automatic ally

entitled to probation. Id. , Sentencing Commission Comments. The defendant bears the burden of establishing his or her suitability for probation. Id. § 40-35-3 03(b); Ashby , 823 S.W.2d at 169. Corr

esponding

ly, even thou gh a defendant meets the

mi nimum eligibility standards for participation in the community corrections program, this doe s not guarantee the defenda nt an admission to the program. State v. Taylor , 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).-6-

In determining whether to grant or deny probation

or oth er form s of al ternat ive se ntenc ing, the trial court may c onsider the circumstances of the offense, the de fendant’s cri mi nal record, background

and social history, the def endant’s physica

l and mental heal th, the deterrent effect on othercr iminal beh avior and whethe r probat ion is in the

best inter

ests of bo th the publ

ic and the defendant. State v. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996).

It appears from the record that the trial cour t, on the whole, considered Defendant’s persona l hi st or y, and the facts and circumstances surrounding the commis sion of the offense s. Base d on this review, the trial court concluded that Defend ant’s pr

evious uns uccessf

ul attempt s at rehabilitation
as well as his continuing drug use gave little assurance that

Defendant

would abide by the ter

ms of any probation if such alternative was extended to him. The tria

l court fu rther ba sed its de cision to incarc erate

Defendant on the need to protect society from Defendant as a resul t of his history of criminal conduct. See Tenn. Code Ann. § 40-35-103(1)(A).

Alth ough the record does not show that th e trial court specifically ruled that the evidence sufficie ntly rebutted the presumption that Defendant was eligible for alter native sentencing, the

trial court did discuss several significant negative factors which

would support its conclusion. Based on the pre-se ntence r eport, Defendant was a

rrested for posse ssion of ma

rijuana withthe inten

t to sell
on Decemb er 11, 19 98. I n April 199 9, befor

e Defe ndant wa s convict

ed of th e drug charge, Defendant

was arr ested fo r vandal ism and as sault, bot

h mis de meanor charges. On July 16, 1999, Defendant

was convicted for the offense committed on Dec ember 11, 1998, and placed on eighteen months probation. While on probation, Defendant committed the offenses that led to his convictions and subsequent appeal in the instant ca se. This r ecord issufficie

nt to suppor

t a finding that measures less restrictive than confinement have recently been unsuccessful. During the preparation of the presentence report in the case sub ju dice , Defendan t also admitted that he could not pass a drug screening test bec ause he h ad used ma rijuana within the

la st three or four days. More over, Defendant said that he continued to use marijuana three or four times a week.

In Defendant’s favor, the recor d shows that Defendant is employ ed, engaged to be married and recent

ly b ecame a father. The pre -sentence report indicates that Defe ndant is willing to stop using marijuana if the trial cou rt place s him o n probation. Defendant argues that the tria l court improper ly characterized

his offenses as serious when his most serious conviction was only a Class E felony . It a

ppears f rom the record tha

t the tria l judge m erely expressed an opinion

that he wo

uld prefer to return to the day s when pos session of marijuan a was a Cl ass B felony . Nonethe less, with in
a span of two yea

rs, Defendant was arrested and c onvicted for two misdemeanor offenses and two Class E felonies, and both of the felony offenses were related to drug s. Moreover, Defendant has continued to use marijuana in contravention of the lawup to the ti me of t he sen tenci ng heari ng. See State v. Bottoms , 87 S.W.3d 95 , 101 (Te nn. Crim. A

pp. 2001) . Based

on our re vie w, the recor d sho ws that the presumption of alternative sentencing of any type was suff

iciently rebutted in thi s case. B. Application of Enhancement and Mitigating Factors to Defendant’s Sentence.-7-

Defendant

argues that his sentence was excessive as a result of the trial court’s improper application of enhan

cing fa ctors and its failure to consider mitigating factors in determining the length of Defendant’s sentence

. At the time of the sentencing hearing, the re weretwenty-two statutory enhancement factors listed in Tennessee Code Annotated se ct io n 4 0- 35 -1 14 . S ub se qu en tl y, in Public Acts 2002, ch. 849, § 2, the legislature added a twenty-third enhancement factor, but listed it as enhancement factor (1) and renumbered previous factors (1) through (22) as (2) throug h (23). See Tenn. Code Ann. § 40-35- 114 (Supp. 2002). In this opinion, we will refer to the enha ncement factors of Tennes see Code Annot ated s ectio n 40-3 5-114 as the y existe d at th e tim e of th e sent encin g hearin g.
The presumptive sentence to be imposed for a Class B , C, D or E felony is the minimum within the applicable range unless there are enhancement or

mitigating factors present. Tenn. Code Ann. § 40-35-21 0(c ). If there a re enhancement or mitigating fa ctors, the court must start at the p resumptive sentence, enhance the sentence as appropriate for the enhanceme nt factors, and then reduce the sentence in the range as appro priate for the mitigating factors. Id. § 40-35-210(e). The weight to be given each factor is left to the discre tion of the trial court. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

At the con clusion of Defendant’s sentencing hea ring, the trial court applied three enhancement

factor s: (a) Defendant has a previous history of criminal convictions or behavior; (b) Defendant

has a pre

vious histo

ry of unwillingnessto comply with the conditions of a sentence involving release in the community ; and (c) the offenses were committed while Defendant was on probation as a result of a prior felony conviction. Tenn. Code Ann. § 40-35-114(1), (8) and (13)(C). Defendant

argues in his brief that the trial court erroneously applied factor

(3), the offense involved
more than one victim, but the record shows that the trial court did not find this fact or applic able to Defendant’s situation. Although it appeared reluctant to do so, the trial court found that the fact that Defendant

did not cause any one serious bodily injury as a mitigating factor, although it extended littleweight to the factor. After consideration of

the enhancement factors listed above, the trial cour t sentenced Defend ant to two y

ears, the m aximum of the range for a Range I standard offender
co nv ic te d o f a Cl as s E fe lo ny.
De fendant

first argues that enhancement fa ctors (8) and (13) are based upon the sa me f ac t pattern and ther

efore s hould

notboth be used to increase Defendant’s sentenc e. Under the facts of this case, w e agree. An off ender’ s sentenc e may

be enha nced if the defendant has shown a previous unwilling ness “t o comply with the conditions of a sentenc e involving release in the community .” Id. -114(8). This C ourt, however, has concluded that current of fenses may not or

dinarily be used to establish

a previous history

of proba tion violat

ion, unde r this factor. State v. Hayes , 899 S.W.2d 175, 186 (Ten

n. Crim. Ap

p. 1995). Although Defendant wasarrested twice on mi sde meanor charges in April 1999, he had not yet been co nvicted on the first drug related charg e at the time the misdemeanor

offenses were committed. His first probation resulting from his felony conviction for the December 11, 1998 offense began July 16, 1999. Only the current offenses, therefore , were committed while he was on probation, and factor (8) is not applicable.-8-

A sentence, however, may be properly

enhanced if a felo ny o ffense

is committe d while

the offender is on probation for a prior felony conviction. Tenn. Code Ann. § 40-35-114(13)(C). Defendant

committed the current offenses on November 2, 1999 and Ma rc h 2 0, 20 00 , r es pe ct iv el y, while on probation. Id. -114(13). Factor 13 is therefore a pplicable.

Defendant

next conte

nds that the trial c ourt err ed in not c onsid eri ng as mitigating factors Defendant’s youth and the fact that the offense did not cause anyone ser ious bodily injury . Tenn. Code Ann.§ 40- 35-113(1 ) and (6) . First, w e note tha t the tria l court di d conside

r facto r (1) as a mitigating factor but accorded it little we

ight. We r

eiterat e that the weight assigned to any particula

r mitigating factor

is left to the discretion of the trial court. The record supports the trial cour t’s conclusion.

When determin

ing whe th er th e Defendant lacked substantial judgment in committing the offense because of

his youth, the trial court should consider “the defendant’s age, educ ation,
ma tu ri ty, experience, mental capacity or development, and any

other pertinent circumstance tending to demonstrate the defendant’s ability or inability to apprecia

te the nature of his conduct.” State v. Adams , 864 S.W.2d 31, 33 (Tenn. 1993). At the time of the offense, Defendant was ninetee n years ol d and a high school graduate. As discussed at the sentencing hearing, this was not Defendant’s first offens e invo lvin g drugs n or had Defend ant cea sed to use dr ugs pri or to h is sen tenci ng heari ng. The record is devoid of any evidence supporting Defendant’s contention that he lacked substantial judgment in committing the offense.

Even though w e conclu de th at the trial court impr operly consider ed fact or (8) in its sentencing determinations, the applicability of two e nhancem ent f

actors and the minimal weight assigned the one mitigating factor suppor t Defend ant’s se

ntence o f two y

ears fo r each o f the Clas s E felonies. See State

v. Spratt, 31 S.W.3d 587, 609 (Tenn. Crim. App. 2000).

CONCLUSION

After a careful review of

the record, the judgments of the trial court ar e affirmed.

____________________________________ THOMAS T. WOODALL , JUDGE