# FILED
October 6, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1999 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9902-CC-00033 Appellee, ) ) HICKMAN COUNTY VS. ) ) HON. DONALD P. HARRIS, MARK M. GESNER, ) JUDGE ) Appellant. ) (Delivery of a Cont rolled Substance)

FOR THE APPE LLANT: FOR THE APPELLEE:
JOHN H. HENDERSON PAUL G. SUMMERS District Public Defender Attorney General & Repor ter 407 C Main St. P.O. Box 68 MARK E. DA VIDSON Franklin, TN 37065-0068 Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493 RON DAVIS District Attorney General JEFFREY P. BURKS Asst. District Attor

ney General P.O. Box 937 Franklin, TN 37065-0937

OPINION FILED:

AFFIRMED AND REMA NDED JOHN H. PEAY, Judge1 We note that the jur y’s ver dict form indicates t hat the j ury found t he defendant gui lty of the deliver y of mariju ana. However, t he trial court’s j udgment form indicate s that th e defendant was found guilt y of the sale of marij uana. 2 

### O P I N I O N

The defe ndant wa s found guilty by a j ury of delivery of one- half ounce or more of marijuana. 1 The trial court sentenced the defendant as a Ran ge I stand ard offenderto a term of two years i n the Tennessee Department ofCorrection. This sentence was suspended and the defendant was to serve f our years on supervi sed probation and a term of ninety days i n the county jail. The defendant’s subsequent
m otion for a new trial was denied by the trial cour t. The defendant now appeal s an d contends that the evidence was i nsufficient to support his conv iction a nd th at his sentence is excessive. After a r eview of the record and ap plicable law, we find no merit to the defendant’s contentions and thus affirm the judgment of the trial cour t.

The defendant’s conviction stems from his invol vement in the sale of marijuanato Thomasina Turner O la . According to Ms. Ol a, she went to the sheriff of Hickman County, Dwight England, out of concern for her children. Ms. Ola and Sher iff England devised a plan in order to catch the defendant selling drugs. According to Ms. Ola, she went to the d efe ndant and asked him how to “go about getting some grass .” The defendant said he would get back to her. A few days later, the defendant told Ms. Ola she would need two thousand ( $2000) dollars. When she later told the defenda n t that she just wanted “a little bit ,” the defendant told her that he could sell the marijuana onlyby the pound. Ms. Ola met w ith Sheriff

England the next day. Sheriff England told Ms. Ola to set up the drug deal. Ms. Ola then made arrangement s with the defendant to meet at a nearby store. Acco rding to Ms. Ola, the de fendant tol d her they would “go see the dealer.” At some point duri ng these discussions, the d efe ndant told Ms. Ola they3

wou ld be meeting the dealer on Only Road. On March 12, 1996, Ms . O la met th e defendant at the store and they proceeded to Only Road. Howev

er, before leaving w

ith the defendant, Ms. Ola contacted Sheriff England to tell him they w ere leav ing. Sh eriff England was waiting appr oximately 400 yards

from a point on Only Road w here the transaction was supposed to take place.En route to Only Road, the defendant directed Ms. Ola to continuedriving straig ht rather than turn right as was previousl y planned. Ms. Ola repeatedly asked the defendan t abou t the dealer until the defendant repl ied, “You just met the dealer. ” At that point, the defendant pulled out a bag of marijuana and tossed it into Ms. Ola’s seat . She then gave him the tw o thousand d ollars ($2000) in marked bi lls she had received from Sheriff England. The defe ndant then directed Ms. Ola to take hi m back to his hous

e. After droppin g off

the defendant, Ms. Ola contacted Sheriff England and met him on Only Road. She then gav e him the bag of marijuana given to her by the

defendant. Although Sheriff England searc hed the defendant’s home, he was unable to find the defendant or the two thousand dollars ($2000). The defendant was located approximately one year later and placed under arrest. The substance given to Ms. Ola was su bsequen tly tested by the TBI crime lab oratory and tested positive as marijuana.

The defendant now contends that the evidence is insufficient to support his conviction. A defendant challenging the s ufficiency of the proof has the burden of illustratingto this Court why the evidence is insufficient to support the verdict r

eturned by the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of sufficientevidence unless the facts contained in the reco rd and any inferences which maybe drawn from the facts are ins ufficient, as a matter of law, for a rati onal trier of fact to find the def endan t guilty beyond a r easonable doubt. State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982).4 When an accused challenges the sufficiency of the convic ting evidence , we must revie

w the ev idence i n the li ght most fa vorab le to the prosecution in deter mining whether “any rational trier

of fact could h av e found the esse ntial elements of the cri me beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We do not reweigh or re-evaluate the ev idence and are req uired to af ford the State the strongest legitimate view of the proof contained in the record as well as all reasonab le and legitimateinferences which may be draw n ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

The defendant contends that the evidenc e is insufficient to support his conviction due to several inconsi stencies in the t estimony of Ms. Ola and S heriff England and the fact that only Ms. Ola witnessed the alle ged dr ug transaction. We note that questionsconcerning the credibi lity of witnesses, the weight and value t o be given to

the evidence, as well as factual iss ues raised by the evi dence are resolved by the trier of fact, not this Court. Cabbage , 571 S.W.2d 832, 83 5. A guilty verdict rendered by the jury

and approved by the trial judge accredits the testimony of the witnesses for the State, and a presumption of guilt replaces the pr esumption of innocence. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). It is apparent from the jury’s v erdict that they accredi ted the testimony

of Ms. Ola and Sheriff England despi te any minor

inconsistencies. As thi s was within the provinc

e of the jury, we find no mer it to the defendant’s contention.

The defendant next contends that the tri al court erred in sentenci ng him to a t er m of two years. When a defend ant complains of his or her sentence, we must conduct a de novo review with a presumptionof correctn ess. T.C.A. § 40-35-401(d). The burden of showingthat the sentence is improper is upon the appealing party . T.C.A. § 40-35-401(d) Se nten cing Commission Comments. This presumption, however, “is5

conditioned upon the affirmative showing in the record that the tri al court considered the sentencing principles and all relevant facts and circumstances.” State v . Ashby , 8 23 S.W.2d 166, 169 (Tenn. 1991). Because we find the trial court co nsider ed the sentencing principles and the relev ant facts and circumstances of this case, our review is de novo with a presumption of correctness.

The de fendant was convicted of the del ivery of a controlle d substance, a Class E felony. As a Range I standard offender, the trial court had the authority to sentence the defendant to not less than one ye ar nor more than two y

ears. T.C.A. § 40- 35-112(a)(5). In deciding the defendant’s sentence, the tri al court found that the defendant has a previous history of criminal convictions and behavior, that the defendant has a previous historyof unwill ingness to comply with the conditions of a sentence involving release into the community,and that the felony was committed w hile the defendant was on parole for a prior felony conviction. T.C.A. § 40-35-114(1), (8), (13). The trial court also found one applicable mitigating factor, that the defendant’s condu ct neither caused nor threatened serious bodily injury. T.C.A. § 40-35-113(1). The record supports the applicatio n of all these factors. In light of the foregoing applicable enhancement f actors and only one applicable miti gating factor, we hol d that the trial court’s sentence of two years was proper.

The defendant further contends that the trial court erred in sentencing him to a term of ninety days incarceration. The Criminal Sentencing Reform Act sets ou t sentencing cons idera tions which are gui delines for determining w hether or not a defendant should be incarcerated. These include the need “to protect s oc ietyby restra ining a defendant who has a long history of criminal conduct,” the need “to avoid depreciating the seriousness of the offense,” the deter mination that “confine m ent is6

particularlysuited to provide an effectiv e deterrence to others lik ely to commit similar offenses,” or the determination that “measu res less restricti ve than conf i nement have frequently or rec ent ly been applied unsuccessful ly to the defendant.” T.C.A. § 40- 35- 103(1).

In addition, it is obvio us after a review of T.C.A. § 40-35-102 that theintent of the legislature is to encourage alternative s to incarceration in ca

ses where defendants are sentenced as standard or miti gated offenders convicted of C, D, or E felonies. However, it is also clear that there is an intent to incar cer ate those de fendants whose crimina l histories indicate a cl ear disregard for the law s and morals of societ y and a failure of past efforts to rehabilitat e.

In the case at bar, the tri al court based a term of incarc eration on the defendant’s criminal history, which consists of a weapo ns offense , posses sion of a controlled substance, sale of a controlle d substance, and the manuf act ure, sale, and possession of a controlled substance. The trial court also based a term of incarceration on the defendant’s previous history of unwillingness to comply with the co nditio ns of a sentence involving rel ease into the community, the fact that the offense in the case at bar was committed while he was on parole for a pr ior f elony conviction, th e amount of marijuanainvolved in this case, the need to avoid depreci ating the seriousness of the offense, and the deterrent value of the confinemen t. In light of the foregoing, we hold that a sh ort period of confinement was appr opriate in the case at bar. As such, th i s contention is without mer it.

In sum, we find that the eviden ce is sufficient to supp ort the defendant’s conviction and that the defendant has failed to prove that the

trial court’s sentence was7

improper. Accordin gly, we affirm the defendant’s convictio n and sen tence. Ho wever, we remand the case t o the trial court to corr ect the judgment form to properly reflect the offense for which the defendant was con victed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ JOHN EVERETT W ILLIAMS, Judge