### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 10, 200 4

STA TE OF TEN NES SEE v. C HRIS TOP HER JEROM E TAY LOR

Direc t Appeal from the Circ uit Court for F ayett e County No. 5146 Jon Ke rry Blackwood , Judge

No. W2002-01977-C CA-R 3-CD - F iled Fe bruary 25, 2004

A Fa y ette County jury convicted the Def endant, Christopher J erome Taylor, of possession of more than 0.5 g rams of c ocaine with intent to deliver, possession of more tha n 0.5 ounces of

marijuana with intent to de liver, and felony possession of a handg un. Following a sente ncing hear ing, the trial court imposed conc urre nt sentence s of eig hteen y ear s for c o ca i n e p o s session, three y ear s for marijuana possession, and t hree y ear s for felony possession of a handg un. On appe al, the De fenda nt contends: (1) that insufficient evidence exis ts in the record to support his convictions; and (2) that his se nte nc e is e xce ssi ve . F ind ingno re ve rs ibl e e rr or , w e a ff ir m th e tr ia l c ourt ’s jud g me nts

.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

R OB E R T W. W EDEMEYER , J
., delivere d the opi nion of t he cour t, in which J OE G. R I L EY , and J OHN E VE R E TT W I L L I AMS , J J ., joined.

Clifford K. McGown, J r., Waverly
, Tenne ssee (on appea l) and Shana McCoy -Johns on, Somerville, Tenne ssee ( at trial and of counsel on a

ppeal) , for the a

ppellant, Christopher Jerome Tay lor.

Pa u l G

. Summ e r s , A tt o r

n e y G e n e r a l an d Re p o rte r ; M ic h a e l M o o r e , So li c it o r G e n e r a l; Thomas E. Wil liams, I I I , Assistant A ttorney Gene ral; Elizabeth T. Rice, District Attorne y Gene ral; and Te rry Dy cus, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
Opin ion I. F acts

This case involves a traf

fic stop by police in Somerville on the ni g ht of S eptember 22, 2000, and the subseque nt appre hension of t he Defenda nt, Christopher J erome Taylor, who fled from the

car car rying a bl ack bag

. Police rec overe d the bl ack bag in a nea rby cotton field and discove red that the bagcontained a

loaded 9- milli meter Stalling s pistol, a set of p o s t ag e sca les, a bundle of

mari jua na , a pla sti c ba g of wh ite po wd e r co c a ine , an d a pla sti c ba g of c ra c k c oc a ine . T he F a y e tte County Gra nd J ury ind i ct ed t h e Defenda

nt for one c ount of possession of more tha n 0.5 g rams of

c oc a ine wi th i nte nt to de liv e r, on e c ount of po sse ssi on of mor e tha n 0.5 ounc e s o f m ari

jua na wi th-2-

int e nt t o d e liv e r, and

on e c ount o f fe lony po sse ssi on of a ha nd g un

. Af

te r a tr ia l, a

F ay e tte County jury convicted the Def

endant of t h e ch ar ged offe nses, and the tr ial court imposed conc urre nt sentenc es of e ighte en y ear s for c ocaine possession, three y ear s for mar ijuana possession, and thre e y ear s for fe lony

possession of a ha

ndg un. Th e De fe nd ant n owa pp e a ls.

Th e fo llo wi nge vid e nc e wa s p re se nte d at th e De fe nd ant’ s tria l. Do ugCur re y , a n o ff ic e r w ith the S om ervi ll e Pol ic e De pa rtme nt, te sti fi e d th a t, o n Se pte mbe r 2 2, 20 00 , th e F ay e tte County She ri ff ’s De pa rtme nt i nf

or me d t he po li c e de pa

rtme nt t hat st ud e nts we re havin g a

larg e pa rt y inv olv inga lc oh ol i n a

fi e ld o n th e e a st s ide of Som e rv ill e

. Of fi c e r Cur re y state d th a t, i n r e sp on se to t his tip , h e and

Of fi c e r T e rr y Eu ba nk s p ark e d th e ir

patrol cars on

the e a st s ide of

Som e rv ill e in the median of

Hig hway 64 to monitor traffic a

t approxim ately

11:15 p.m. that night. The of fice r stated that, af

ter a bout five minutes, he and Offic er Eubanks observe d a vehicle trave ling we stbound towards Somerville on Hig hway 64. Offic er Curr ey

testified that he a ctivat ed his radar and discovere d that the vehicle was traveling at forty -eig ht miles-per-hour in a six ty -five mile- per- hour speed zone. He stated that he immediately suspected that the driver ma y be intox icated be cause of the vehicle ’s s low speed and the fact that the vehic le was dr ifting towa rds the median. T he off

icer

c he c ke d th e ve hic le ’s sp e e d a g a in w he n it g ot c los e r t o So me rv ill e and dis c ov e re d th a t th e ve hic le
was traveling at forty -one miles-pe r-hour . Offic er Currey stated that the vehicle came within five fee t of hitting his patrol car beca use it dr ifted inward toward the median. The office r explained that he then looked in the r ear view mirror

and discove red that the vehicle ha d no licence plate. Of fice r Currey stated that he immediate ly turned his patrol c ar around and attempted to initiate a tra ffic stop by turning on his blue emerg ency lights. He stated that the vehicle was traveling in the inside lane and, whe n he ac tivated the patr ol car ’s lights, the ve hicle starte d drifting over to the r ight lane
tow ard s th e curb. Th e of fi c e r e xpla ine d th a t th e ve hic le slo wl y dr if te d to the c ur

b, and , b e fo re it

came to a complete stop, the back passeng er door “fl[ew] open” and a man, whom he identified as the Def endant, r an out of the ve hicle towar d an adja cent c otton field. Offic er Curr ey stated that he noticed that the De fenda

nt held a lar g e objec t in his l eft ha nd as he r an towar d the field.

Offic er Curr ey

explained that he immediately contac ted the police depar tment and informed them, “I ’ve g ot one bailing on me.” The office r stated that Of fice r Eubanks, w ho was be hind Office r Cur re y ’s patr ol c ar, dr ov e his patr ol c ar t o a g a s st a tio n d ow n th e ro a d a nd tur ne d his hea d li g hts towards the c otton field. The off icer testified t hat, after a few minutes, Of fice r Eubanks a

nd Offic er Glenn Bu r g e s s b r o u g h t t

h e D e f e n d an t o u t o f

th e c o tt o nf

ie ld an d p u t h im in th e b a c k o f O f f icer Currey ’s patrol c ar. O ffice r Curre y stated that Off

icer Eubanks found $4,636 in c ash on the Def endant a nd place d the money in an evidenc e bagat the sce ne. He stated that Off icer Euaba nks and O f f ic e r B u r g e s s f

o u n d a b la c k b a g s itti n g in

th e c o tt o nf

ie ld w h e r e th e D e f

e n d an t w as appre hended. O ffice r Curre y testified that he ope ned the blac k bag and found a loaded 9- milli meter Sta lli ng s p ist ol, a

se t of po sta g e sc a le s, a

larg e bund le of

marij uan a, a lar g e pla sti c ba g of wh ite powder coca ine, and a

larg e plastic ba g o f crack c ocaine . The off icer stated that he de livered the bag s of drug s to the Tenne ssee Bur eau of I nvestig ation (“TB I ”) f

or testing , and the TB Iconfirme d that the substance s were marijuana and c o ca i ne. Of

fice r Curre y

stated that anothe r police of fice r found a small bundle of marijuana in the back rig ht pa sseng er floorboar d of the suspect’s ve hicle. The off icer stated that Off

icer Eubanks and Offic er Bur g ess also found a g ree n-colore d pag er a

nd-3-

a pac k of Ne wport cig are ttes next to the black ba g in the cotton field.

Of fi ce r C u rrey

testified that the De fenda nt was re ad his Miranda

rig hts after

the offic ers place d him in the back of the patrol ca r. The office r aske d the Def endant whe ther the dr

ug s found in the black bag and in the vehic le belong ed to him, and the De fenda nt denied that the dr

ug s were his. The offic er stated that the Defenda nt then asked the officers whether the y found his pag er in the cotton field, and the office rs re plied aff irmatively . Offic er Cur re y t es t i fi ed that he then drove the Def endant to the police depar tment for f

urther que stioning. The of fice r explained that, once at the police depa

rtment, he and the ot her police office rs aga in rea d the Defenda nt his Miranda rig hts. The office r stated that, while the police office rs wer e proce ssing the D efe ndant, he a sked if he c ould have a cig are tte. The off

icer testified that he a sked the Def endant, “ what kind do y ou smoke, and he said, ‘Ne wport Shorts.’” Of

fice r Curre y

stated that Off

icer E u b an k s s h o wed the Defe ndant the pac k of Newpor t cig are ttes he found in the field nex t to the black bagand aske d the Def endant whe ther the cig are ttes belong ed to him, but the Defe ndant re sponded by asking for a

ciga re t te. The of

fice r explained that the Def

endant took the pac k of Ne wport cig are ttes found in the field a nd smoked the m. Offic er Curr ey te s ti f ie d th a t h e an d

O f f ic e r E u b an k s th e ns ta

rte d a s k in g th e D e f

e n d ant questions about the drug s and the gun. The off icer explained, “He didn’t want to say a whole lot at that point, but he did make the stateme nt to us sitti ng there that he wa s taking narc otics to somebody here in Somerville.”

On cr oss-examination, Office r Curre y testified that, in the ar

rest rep o rt prepa

red a fter the Def endant’ s arr est, he did not state t hat t he Defenda nt was carr

y ing a l arg e packag e when he “ba iled out” of the c ar

. T h e St a te an d th e D e f e n d an t th e n s ti p u late d th a t a t th e ti me o f a ll e g e d o f fense of fe lony po sse ssi on

of a ha nd g un , th e De fe nd ant ha d be e n c on vic te d o f a fe lony that w ou ld p ro hib it him from car

rying a wea pon.

Terr y Eubanks, an of

fice r with the Somervil l e P o l i ce De p ar t m en t , co n fi rm edOf fi ce r C u rr ey ’s testimony reg ardingthe traf

fic stop on the nig ht of S eptember 22, 2000, and identified the Def endant as the man w ho fled fr om the vehicle. O ffice r Eubanks testified that, afte r the De fenda nt fled fr om the bac k seat of the car

into the cotton field, he drove his patrol car t o a near by convenie nce store and parke d the patrol car so that the headlig hts shined throug h the cotton field. The office r stated that he then exit ed his patrol car and beg an runningthroug h the cotton field “ to interce pt this guy .” The off icer stated t hat t he Defenda

nt stumbled to the gr ound so he wa s able to re strain the De fenda nt and handc uff him. Off

icer Eubanks testified that Offic er Bur g ess then ar rived in the pa

rking lot of the conve nience store, and Offic er Bur g ess took c ustody of the Def endant. Of

fice r Eubanks state d that he re ad t h e Defendant his Miranda rig hts and patted him down for any wea pons. The off

icer
state d th a t “ a

larg e qu anti ty

of mon e y wa s re mov e d fr om [the De fe nd ant’ s] pa nts , f ro m hi s p oc ke ts. That money was folded over in a way that is c ommonly folded in na rcotics traff

ic[king]. .

. . I t was folded in one thousand dollar incre ments.” The office r explained that he and Of fice r B urg ess took the Def endant to Of

fice r Curre y ’s patrol c ar.

Of fi c e r E ub ank s te sti fi e d th a t he the n r e tr a c e d th e De fe nd ant’ s fl ight in to t he c ott on fi e ld from the hig hway

to searc h for e vidence . He e x plained that, as the Def endant r an throug h the cotton-4-

field, he tra

mpled and par

ted the stalks of c otton, so the Defe ndant’s path “ was almost a highwa y .” The officer stated t hat he found t he black bagly ing to the le ft of the De fenda nt’s path about half

way down the path. Off

icer Eubanks testified that he opened the black ba g and found a loaded ha

ndg un, with ammunition i n the mag azine as well as one in the chamber, “rea dy to fire.” He state d that he immediately

“cle are d the wea

pon” by removing all the ammunition. The offic er e x plained that he also found a se t of scale s, a larg e quantity of marijuana
, a plastic bag full of powder coca ine, and a plastic bagfull of roc k coca ine. Off icer E u b an k s s t ated that he also found a pa g er a nd a pac k of cig are ttes next to the black bag in the cotton field. The of fice r stated that he then took the bagand the other e vidence to Office r Curre y and the other

offi ce rs an d t hen took the De fenda nt and the evidenc e to the police de partment.

Offic er Euba

nks testified that, once they arr ived at the police depar tment, the Def

endant asked w hether

the police of

fice rs had f

ound his pa g er. The office r stated that the Def endant a sked fo r a c ig ar e tt e an d to ld th e p o li c e th a t h e li k e d to s mo k e N e wp o rt c ig ar e tt e s , th e s ame br and that police found ne x t to the black bag . On cr oss-examination, Officer Eubanks testified that the Def endant did not strug g le once he appre hended him in the field. The office r stated that he did not have the ha

nd g un or the sc a le s te ste d f

or fi ng e rp ri nts

.

Glenn B urg ess, an of

fice r for the Somerville Police Depa rtment, testified t hat, on the nig ht of September

22, 2000, he re sponded to a ra dio call that stated that off icer s had made a tra ffic stop

and a su sp ect had fl e d f

ro m th e ve hic le on

fo ot. The off

icer stated that, as he pulled into the convenie nce store near

the cotton field, Offic er Eubanks was wa lking ba ck to the conve nience store with the Def

endant in custody

. Offic er Bur g ess testified that he then took the De fenda nt into custody beca use Off icer Eubanks “w as a little exhausted afte r the c hase.” He ex plained that, as he patted the Def endant down for safety
, “ther e were bulge s in the pockets of t he pants of the [D]efendant, a nd upon pulling the co n t en t s o u t , it was ca sh money .” Of fice r B urg ess stated that the c ash wa s pa c ka g e d in

tho us and do lla r b un dle s.

J eff rey Dre ason, a spe cial ag ent fore nsic scientist with the TBI , testified that he tested the drug s found in the black ba g at the TBI crime lab. Ag ent Dre ason stated that he deter mined that the bund le of g re e n le a fy

su bs tanc e fo un d in

the bla c k ba g wa s mari

jua na in t he a mou nt o f 3 53 .5 g ra

ms, the roc k-like substance was “ cra ck” c ocain e i n the amount of 22 g rams, and the white powder substance was powder coca ine in the amount of 15 g rams. There afte r, the State rested, and the Def endant did not pre sent any proof.

II. Ana lys is

On a pp e a l, t he De fe nd ant c on te nd s: ( 1) that in su ff ic ie nt evi den c e e xists in t he re c or d to support his convictions; and (2) that his sentenc e is excessive.

A. Suf fi ciency of the Evidence

Th e De fe nd ant c on te nd s th a t the e vid e nc e pr e se nte d a t tr ia l wa s ins uf fi c ie nt to su

pp or t hi s-5-

convictions. When an ac cused c halleng es the suff iciency of the e vidence
, an appe llate cour t’s standard of

revie w is whether , afte r consider ing the evidenc e in the l i gh t m ost favora ble to the
prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond

a re a so na ble do ub t. Te nn . R. App

. P. 13( e ); Jac ks on v. Vi rg ini a

, 44 3 U. S. 30 7, 32 4 (1 97 9) ; State v. Smit h, 24 S.W .3d 274, 278 (Tenn. 2000). This rule applies to finding s of g uilt based upon direc t evidenc e, circ umstantial e vidence
, or a combination of both dir ect and circ umsta n t i al ev idence

. State v. Pe nd e rg ra ss , 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

I n d e te rm ini ngthe su ff

ic ie nc y of the e vid e nc e , th is C ourt

sh ou ld n ot r e -w e ig h o r re -e va luate the evidenc e. State v. Matthew s , 80 5 S. W.2 d 7 76 , 7 79 (T enn . Cr im. Ap p. 19 90 ). No r m a y thi s C o u rt s u b s t i tu t e i t s i n fe re n ce s fo r t h o s e d ra wn b y t h e t ri er o f f ac tfr o m t h e e v i d en ce

. S t at e v

. Bu ggs , 99 5 S. W.2 d 1 02 , 1 05 (T e nn . 1 99 9) ; L iaka s v . St a te

, 286 S.W .2d 856, 859 (Tenn. 1956) . Questions

c on c e rn i n g t h e c r e d i b i l i t y o f t h e w i t n e s s e s , t h e w e i g h t an d v a l u e o f t h e e v i d e n c e , a s w e l l a s a ll fac tual issues raised by

the e v i d ence are resolved by the trier of

fac t. L iakas

, 286 S.W .2d at 859. This Court must aff

ord the State of T ennesse e the strong est leg itimate view of the e vidence contained in the r ecor d, as well as all rea sonable infe renc es which ma y be dra wn from the e vidence

. State v. Evans

, 838 S.W .2d 185, 191 (Tenn. 1992) . Be cause a ver dict of g uilt aga inst a defe ndant

remove s the presumption of innoce nce a nd raises a

presumption of g uilt, the convicted cr iminal de fe nd ant be ars the burd e n of sho wi ng that the e vid e nc e wa s leg a lly ins uf fi c ie nt to sus ta in a

g uil ty verdic t. I d.

The De fenda

nt was convic ted of the f ollowing of

fense s: one count of possessi o n of more than 0.5 g ra m s of coc aine with intent to deliver; one count of possession of more than 0.5 ounce s (14.175 g rams) of

marijuana with intent to deliver; and one count of f elony possession of a ha

ndg un. 1. P ossession of

Controlled Sub stances With Intent to De liver

Under Tenne ssee Code Annotated section 39-17-417( a)( 4) (1997 & Supp. 2002), “[i] t is an offe nse for a defe ndant to know ingly

. . . [p] ossess a contr olled substance w ith intent to m anufa cture , deliver or sell such controlled substanc e.” T he evide nce w as over whelming that the Def

endant possessed more than 0.5 g rams of coca ine wit h intent to deliver and possessed more than 0.5 ounce s (14.175 g rams) of

marijuana

with intent to de liver. See Tenn. Code Ann. § 39-17-417( c)( 1), -( g )(1)

. Offic er Curr ey

and Of fice r Eubanks te stified that they witnessed the Def endant f lee f rom the bac k of the suspicious vehicle and run into a ne arby cotton field. Off

icer Currey stated that the De fenda

nt

was carr y ing a larg e objec t in his l eft ha

nd as he r an. Of

fice r Curre y

stated that off

icer s found $4,636 in c a shin the De fe nd ant’ s p oc ke ts at th e tim e of the arr e st, and

Of fi c e r E ub ank s and

Of fi c e r B ur g e ss testified that the ca sh found on the De fenda nt was pac kag ed in $1,000 bundles, which is common in narc otics traff

icking

.

Offic er Euba

nks stated that, af

ter a pprehe nding the Def

endant in the cotton field, he re trac ed the De fe nd a nt’ s p a th t

hr ou g h the fi e ld an d fou

nd a bla c k b a g c on ta ini nga

loa de d h and g un , a

bund le of marijuana , a plastic ba g full of powder coca ine, a plastic bag full of “cr ack” coca ine, and a set of

sca le s

. T h e o f

f ic e r s tate d th a t h e a ls o f

o u n d a p a g e r an d a p a c k o f N e wp o rt c ig ar e tt e s n e xt to the black ba g . The Defenda

nt asked the of

fice rs whethe r they

found his pag er in the f

ield, and he the n-6-

asked the office rs for a cig are tte, stating that he pre fer red N ewpor

t cig are ttes, the same br and found

nex t t o the black ba g . Ag ent Dre ason stated that he deter mined that the bundle of g ree n leaf y

s u b s t an ce found in the black ba g was mar ijuana in the amount of 353.5 g rams, the r ock-like substance was “cr ack” coca ine in the amount of 22 g rams, and the white powder substance w as powder coca ine in the amount of 15 g rams. F inally , Offic er Curr ey testified that, during the interrog ation, the Def

endant “ did make the statement t o us sitti ng there that he wa s taking narc otics to somebody

here in Somer

ville.” After considering this e vidence in the light most favor able to the
prosec ution, we conc lude that a r ational trier of fac t c ould have f

ound the essential e lements of the crimes be y ond a re asonable doubt.

2. F e lon y P os se ssi on o f a Ha ndgun

A per son commits the crime of f elony possession of a handg un when the pe rson possesses a handgun and: “(A) [h] as bee n convicted of a fe lony involving the use or attempted use of for ce, violence or

a dea dly wea pon; or (B ) [h] as bee n convicted of a fe lon y d ru g o ffense.” Te nn. Code Ann. § 39-17-1307( b)(1) (A), (B) (1997). The ref ore, in orde r for

the State to convict the De fenda nt of fe lony possession of a ha

ndg un, it had to pro v e b ey o n d a rea sonable doubt that the De fenda nt possessed a ha

ndg un and had a

previous fe lony

conviction involving “ the u s e or attempted use of forc e, violence or a de adly wea pon” or a

previous con v i ct ion of a fe lony drug offe nse. The Def endant sti pulated that, at t he ti me of the allege d offe nse of felony possession of a ha ndg un, he had bee n convicted of

a fe lony that would prohibit him from carr y ing a wea pon. Offi cer

Currey testified that the De fenda

nt was ca rry ing a larg e objec t in his left ha

nd as he r an into the cotton field. Offic er Euba

nks stated that he f

ound a black bagcontaining a loade d handg un along the Def endant’ s path throug h the cotton field. This e vidence established that the Def endant possesse d the handgun inside the black ba g as he r an out of the vehicle and then droppe d the bagin the cotton field during his flight fr om police. Acc ording ly , afte r vi ew i n g t h i s evidenc e in the lig ht most favorable to the
prosec ution, we conc lude that a r ational trier of fac t could have found the e ssential elements of the

c ri me be y on d a

re a so na ble do ub t.

B. Se nt e nc ing

The De fenda

nt next contends that his sentenc e is excessive. When a defenda nt challeng es the leng th and manner

of service of a

sentenc e, it is the duty

of this court to conduc t a de novo revie w on the re cord with a presumption that “the de terminations made by the cour t from which the

a pp e a l is take n a

re c or re c t.” Te nn . Co de Ann. § 4 0- 35 -4 01 (d ) (20 03 ). Th is p re su mpt ion is

“‘ c o n d it io n e d u

p o n th e a f

f ir mati v e s h o w in g in th e r e c o r d th a t th e tr ia l c o u rt c o n s id e r e d the

se nte nc ing pr inc ipl e s and a ll re le va nt fa c ts an d cir c ums tanc e s. ’” State v. Ros s , 49 S.W .3d 833, 847 (Tenn. 2001) (quoting State v. Pettus

, 986 S.W .2d 540, 543 (Tenn. 1999) ); State v. Ashby

, 823 S.W .2d 166, 169 (Tenn. 1991) . The pre sumptio n d oes not apply to the leg al conc lusions reac hed by the trial cour

t in sentenc ing a defendant or to the deter minations made by

the trial cour

t which ar e predic ated upon uncontrove rted fac ts. State v. D ean , 76 S.W .3d 352, 377 (Tenn. Crim. App. 2001); State v. Butler

, 900 S.W .2d 305, 311 (Tenn. Crim. App. 1994) ; State v. Smit h, 891 S.W .2d 922, 929 (Tenn. Crim. App. 1994)

. I n conductinga de novo revie w of a sentenc e, we must consider: (a) any-7-

evidenc e re ceive d at t he trial and/or sentencing hear ing; ( b) the pre -sentenc e re port; (c) the principles of sentenc ing; ( d) the a

rg uments of counse l relative to sente ncing alternatives; (e) the nature and char acte ristics of t he offense; (f) any mitigating or enha

nceme nt fac tors; (g ) any

statements made by the def endant on his or he r own be half; and ( h) the de fenda nt’s potential or lac k o f pot ential for reha bilitation or t reatment. Tenn. Code Ann. § 400-35-210 ( 2003); State v. Taylor

, 63 S.W .3d 400, 411 (Tenn. Crim. App. 2001) . The pa rty challeng ing a s entenc e im posed by the t rial cour t has the b u rd en o f establishing that the sentenc e is err oneous. Tenn. Code Ann. § 40-35-401 ( 2003), Se nte nc ingCom mis sio n Cm ts.

Te nn e sse e Cod e Anno ta te d s e c tio n 4 0- 35 -1 03 (1 ) ( 20 03 ) s ta te s th a t:

Se nte nc e s in vo lvi ngc on fi ne me nt s ho uld be ba se d o n th e fo llo wi ngc on sid e ra tio ns : (A) Confine ment is nece ssary to protect socie ty

by restra ining a defe ndant who has

a lon g his tor

y of c ri min a l c on du c t; (B ) Confinement is nece ssary to avoid depreciating the se riousness of the of fense or

c on fi ne me nt i s p art ic ula

rl y su ite d to pr ov ide an e ff

e c tiv e de te rr e nc e to oth e rs lik e ly to commit si milar offe nses; or (C) Mea sures less re strictive than conf inement have fre quently

or re cently

been applied unsucc essfully

to the defe ndant . . . .

Additionally
, “[t] he potential or lac k of potential for the re habilitation or treatment of the def endant should be consider ed in determ i n ing the sentenc e alter native or le ng th of a ter

m to be imposed.” Tenn. Code Ann. § 40-35-103( 5). The trial court may consider enhanc ement and miti g ating fac tors when de termining a def

endant’ s sentence . See Te n n

. C o d e Ann. §§ 40-35-113, -114 (2003)

. Moreove r, if a de fenda

nt is convicted of more than one criminal offe nse, the trial court may order the sentenc es to run either consec utively or concur rently

. Tenn. Code Ann. § 40-35-115( a) ( 2003). The trial c ourt may

order the sentenc es to run conse cu t i v ely if the cour

t finds by a pre pondera

nce of the e vidence that cer

tain criter ia ar e met. See T enn. Code Ann. § 40 -3 5 -1 1 5 (b)( 1)-( 7). I f the court finds that the c riteria in Te nnessee Code Annota te d s e c ti o n 40-35-115( b) ar e not met, sentenc es shall be orde red to run c oncurr ently . Tenn. Code Ann. § 40- 35-115(d)

.

I n the ca se under

submissi on, the trial cour t impos ed co n current Rang e I Isentenc es of eig hteen y ear s for possession of more than 0.5 g rams of coca ine with intent to de liver, three y ear s for possession of more than 0.5 ounc es of mar ijuana with intent to deliver, a nd three y ear s for fe lony possession of a handgun. The trial court enhance d the s entenc e for coca ine possession by

six y ear s and enha nced the sentenc es for marijuana possession and felony possession of a ha ndg un by one y ear

eac h. See Tenn. Code Ann. § 40-35-112( b) (2003). The Def endant and the State stipulated that the only evidenc e re ceive d at the sente ncing hear ing w as the Def endant’ s pre- sentenc e re port prepa red by the Te nn e sse e De pa

rtme nt of Cor

re c tio n. Th e De fe nd ant c on te nd s th a t “ the tr ia l c ourt e rr e d in not givingthe Def

endant’ s miti g ating fac tor (the Def endant’ s criminal conduct ne ither ca used nor threatened se rious bodily injury) suffic ient weig ht.” Howe ver, t h e De fenda nt failed to file the
transcr ipt of the sentenc ing hear ing on a ppeal, so we cannot r eview the trial court’ s findings at the
sentenc ing he aringreg ardingwhat mitigating or enhanc ement fa ctors the tria l court applied.-8-

I t is t h e d u t y

of the De fenda

nt to prepar e a r ecor d which conve y s a fa ir, ac curate and

c omp le te a c c ount o f w hat tr a ns pir e d in the tr ia l c ourt

wi th r e sp e c t to the iss ue s w hic h f or m th e ba sis of his a ppeal. Tenn. R. A

pp. P. 24( b); State v. Bunc h, 646 S.W .2d 158, 160 (Tenn. 1983) ; State v. Gibson, 973 S.W .2d 231, 244 (Tenn. Crim. App. 19 9 7); State v. Hopper

, 695 S.W .2d 530, 537 (T en n

. C ri m

. Ap p

. 1 9 8 5 )

. W h e n t h e r ec o rdi s i n co mp l et e, o r d o es n o tco n t ai nt h e p ro ce ed i n gs rele vant to an issue, this Court is precluded f rom consider ing this issue. Gibson, 973 S.W .2d at 244; Hopper

, 695 S.W .2d at 537; State v. Morton

, 639 S.W .2d 666, 668 (Ten n

. C ri m

. App. 1982). F ur the rm or e , th is C ourt

mus t c on c lus ive ly

pr e su me that the ru lin g of the tr ia l c ourt

wa s c or re c t in all particula

rs. Gibson, 973 S.W .2d at 244; State v. T aylor

, 669 S.W .2d 694, 699 (Tenn. Crim. App. 1983). Be cause the Def

endant failed to f

ile the sentenc ing hear ing transcr ipt, we must presume that the ruling of trial cour

t reg ardingthe Def

endant’ s sentence was c orre ct. Acc ording ly , we c onclude that the Def

endant’ s sentence in this case wa s not ex cessive.

We note that, even in the absenc e of the sente ncing hear ing tr anscr ipt, the pre-se ntence repor t contains ample e vidence to support enhanc ement fa ctors under Tenne ssee Code A nnotated sec tion 40-35-114( 2), (9) , (10) and (14). F irst, the Def endant ha d a pre vious history of cr iminal convictions

or cr iminal behavior in a ddition to those nece ssary to e stablish the appropr iate ra ng e. Te nn. Code Ann. § 40-35-114( 2). The pr e-se ntence repor t indicates that the De fenda nt had fifteen prior convictions betw ee n 1 9 9 3 and 2000, including evadingarr est, driving with a re voked license
, speeding , felony

possession of a ha

ndg un, and possession of coca ine. Second, the D efe ndant had

a pr e vio us his tor

y of un wi lli ng ne ss t o c omp ly wi th t he c on dit ion s o f a

se nte nc e inv olv ingre le a se into the community . Tenn. Code Ann. § 40-35-114(9) . The pre -sentenc e re port indicates that the Def endant ha d his pr obation revoke d for a felony drug offe nse in 1994 and re voked ag ain in 1997 and 2001. Third, the Def endant possessed a handgun during the commission of the drugoffe nses in this case bec ause O ffice r Eubanks found a loaded handg un in the black bag

. Tenn. Code Ann. § 40 -3 5- 11 4( 10 ). F ina lly , th e De fe nd ant wa s on pa ro le a t the tim e he c omm itt e d th e of fe ns e s in thi s

c a se . T e nn . Co de Ann. § 4 0- 35 -1 14 (1 4) . A ll o f t he se e nh anc e me nt f

a c tor s o utw e ig h th e po ssi ble mit ig a tin g fa c tor

that the De fe nd ant’ s c ri min a l c on du c t ne ith e r c a us e d n or thr e a te ne d s e ri ou s b od ily injury

.

III. Conclusi on

I n acc ordanc e with the for ego i n g authorities and r easoning , we c onclude that suff icient evidenc e exists i n the re cord to support the D efe ndant’s convic tions and the trial cour t did not err in s e nte nc ingthe De fe nd ant. Th e re fo re , w e AF F I RM the tr ia l c ourt ’s jud g me nts

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE