IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 22, 2009 at Knoxville

STATE OF TENNESSEE v. TYWAN GARCIA ARMSTRONG

Appeal from the Circuit Court for Marshall County

No. 08CR21 Robert Crigler, Judge

No. M2008-02837-CCA-R3-CD - Filed March 18, 2010

The Defendant, Tywan Garcia Armstrong, was convicted by a jury in Marshall County of

(Count 1) sale of a Schedule II Controlled Substance, a Class B Felony; (Count 2) delivery

of a Scheduled II Controlled Substance, a Class B felony; (Count 3) possession with the

intent to sell a Schedule II Controlled Substance, a Class B felony; (Count 4) possession with

the intent to deliver a Schedule II Controlled Substance, a Class B felony; and (Count 5)

possession of a deadly weapon with intent to employ it in the commission of an offense, a

Class E felony. In this appeal as of right, the Defendant argues that: (1) the trial court erred

in denying his motion to suppress evidence obtained from the search of his car; (2) the

evidence was insufficient to support his convictions for Counts 1, 2, and 5; and (3) the trial

court erred in refusing to apply the mitigating factors submitted by the Defendant at the

sentencing hearing. After reviewing the record, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

S. Craig Moore, Fayetteville, Tennessee, attorney for appellant, Tywan Garcia Armstrong.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant

District Attorney General, attorneys for appellee, State of Tennessee.
OPINION

The Undercover Operation

This case arose from an undercover drug operation where a confidential informant,

Wanda Griffin, agreed to call and ask the Defendant to meet her so that she could purchase

some cocaine. Prior to her cooperation with the Drug Task Force (DTF), Ms. Griffin was

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a narcotics user. After a brief stay in the intensive care unit for her drug addictions, she

volunteered to work with the DTF in April 2006. On April 26, 2007, Ms. Griffin was

working with three members of the Seventeenth Judicial District DTF: Assistant Director

Tim Miller, Special Agent Shane George, and Special Agent Billy Osterman. All three

agents testified at trial.

Ms. Griffin met with the agents at approximately 3:30 in the afternoon on April 26,

2007 in Lewisburg, Tennessee. Agent Osterman searched Ms. Griffin and her vehicle and

gave her a “body wire,” which transmitted a signal to a receiver in Agent Osterman’s vehicle.

The signal from Ms. Griffin’s transmitter was amplified through a piece of equipment in the

trunk of Ms. Griffin’s car. Agent Osterman was able to listen and record everything

transmitted through the signal to the receiver. The agents also equipped Ms. Griffin with a

backup recording device, which was strictly a digital recorder with a microphone that could

not be turned off by Ms. Griffin.

Agent Osterman gave Ms. Griffin one hundred and fifty dollars in the form of a one

hundred dollar bill, a twenty dollar bill, and three ten dollar bills. Before he presented her

with the money, Agent Osterman recorded the serial number from each bill into his notes.

Once Ms. Griffin was issued the money for the undercover operation, the backup recorder

was turned on and was not turned off until she returned with the drugs. At that time, Ms.

Griffin called a cellular telephone number and talked with a person whom she believed was

the Defendant. According to the digital recording, when the Defendant answered, she asked

to meet the Defendant at “Berlin” so that she could purchase a “bill fifty.” The Berlin Store

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is located on Franklin Pike past the airport.

After Ms. Griffin made the telephone call to the Defendant, Agent Osterman ensured

that all of the recording equipment was working properly before she left to meet the

Defendant. When Ms. Griffin arrived at the predetermined meeting location, she called the

Defendant and told him that she was waiting for him. A few minutes later, the Defendant

Ms. Griffin was paid forty dollars for her cooperation.

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Ms. Griffin testified that a “bill fifty” means a hundred and fifty dollars worth of crack cocaine. 

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drove by Ms. Griffin’s car and “tooted the horn.” Ms. Griffin followed the Defendant, who

was driving a black Ford Taurus, to Holly Lane Road. Once on Holly Lane Road, the

Defendant threw a crumpled newspaper out of the driver’s side window. Ms. Griffin got out

of her car, threw one hundred and fifty dollars into the Defendant’s lap, and picked up the

newspaper. As Ms. Griffin was returning to her car, the Defendant said, “It’s about 30 short

. . . I’ll catch you later.” Ms. Griffin responded by saying, “give me a call.” Ms. Griffin

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drove back to the meeting place with Agent George following her in a separate vehicle.

According to Ms. Griffin, this transaction took place during the daylight hours, and

she was within six feet of the Defendant when she gave him the money and retrieved the

newspaper. Ms. Griffin testified that she knew the Defendant as “Monkey” prior to her

agreement with the DTF. She stated that she recognized him and his voice because she

talked with him “hundreds of times” and that she had met the Defendant at this location prior

to this transaction. Each time in the past, Ms. Griffin would drive to the Berlin store, and the

Defendant would drive by and “toot” his horn. She would then follow him to another

location.

Agent Osterman testified that he followed Ms. Griffin all the way to the Berlin store

and observed her pulling into the gravel parking lot where she called the Defendant the

second time. Agent Osterman went past the parking lot and “set up a surveillance system

where he could see through to the gravel parking lot” while Agent Miller continued north and

set up surveillance and Agent George went south. Agent Miller informed the others when

he saw the black Ford Taurus pass his location and head towards the informant. Once Ms.

Griffin began to follow the Defendant, Agent Osterman followed both of the vehicles until

they pulled onto Holly Lane Road.

After the drug transaction, Agent Osterman followed the Defendant forseveral miles.

He testified that he saw the Defendant’s profile when the Defendant turned left onto Jerre

Lane; however, he was unable to see the passenger and could not tell whether the passenger

was black or white. Agent Osterman stated that the Defendant’s black Ford Taurus had a

drive-out tag in the upper left corner of the rear glass window and that the car was damaged

on the rear driver side door. When Agent Miller began following Agent Osterman and the

Defendant, Agent Osterman went back to the meeting place so that he could collect the

evidence, “debrief” Ms. Griffin, and search her car and person. When he arrived, Agent

Osterman found the newspaper, opened it, and saw what he recognized to be crack cocaine.

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The Defendant only gave her one hundred and twenty dollars worth of crack cocaine. 

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The substance was later confirmed as .5 grams of cocaine base or crack cocaine. 

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Agent Osterman searched Ms. Griffin and her vehicle, but he did not find any drugs or

money in her car or on her person.

The Traffic Stop

Agent Miller continued following the Defendant until the Defendant stopped on Jerre

Lane. Once on Jerre Lane, he saw the Defendant and the passenger get out of the car and go

inside a house. Twenty minutes later, the Defendant and the passenger came out of the house

and got back into the car. As Agent Miller was driving towards Jerre Lane, he observed the

Defendant roll through a stop sign and turn right towards Highway 417. He followed the

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vehicle onto Old Columbia Highway, where the Defendant then “took off at a high rate of

speed.”

Agent Miller caught up with the Defendant and turned on his blue lights. The

Defendant pulled over onto the side of the road. Agent Miller got out of his car, approached

the Defendant’s car, and asked for his driver’s license. Agent Miller testified that he smelled

marijuana when he approached the vehicle and that the Defendant and the passenger

appeared nervous. He asked the Defendant to get out of the car and searched the Defendant

for weapons. He asked if he could search the vehicle, but the Defendant did not consent to

the search. When asked whether there had been any marijuana in the car, the Defendant

stated that there had been marijuana in the car recently.

When Agent Miller explained that he had probable cause to search the vehicle, the

Defendant responded by saying that there was a gun in the car under the driver’s seat. At this

point, the passenger was instructed to get out of the car. Once the passenger was out of the

car, Agent Miller and Agent George searched the vehicle and found: marijuana residue in the

carpeting; a loaded, semiautomatic pistol under the driver’s seat; pieces of newspaper

between the seats and the floorboard; several packages of what appeared to be crack cocaine

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wrapped in newspaper under the headliner of the vehicle; and a loaded, 12-gauge pump

shotgun in the trunk. Agent Miller also found one hundred and seventy dollars on the

Defendant’s person. When Agent Miller checked the serial numbers on the money, he found

that one hundred and fifty dollars matched the serial numbers on the money given to Ms.

Griffin. He also took down the Defendant’s cell phone number, which he confirmed was the

same cellular telephone number that the informant called to set up the undercover operation.

At some point, Agent George began following the Defendant and Agent Miller. 

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The substance was later confirmed as 3.0 grams of cocaine base or crack cocaine. 

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The State established the chain of custody for all of the evidence obtained in this case

through the testimony of Agent Osterman, Agent Miller, Director Tim Lane of the

Seventeenth Judicial District DTF, and Special Agent John Scott of the Tennessee Bureau

of Investigation, Nashville Crime Laboratory. We will not recount the substance of their

testimony regarding the chain of custody because it was properly established in this case and

the Defendant does not assert otherwise.

The Defendant called two witness in his defense. Bessie Claude, the Defendant’s

mother, testified that she has never called her son “Monkey” or heard anyone call her son

“Monkey.” On cross-examination, she admitted that she does not live in Lewisburg,

Tennessee; therefore she could not be certain that other people did not call her son

“Monkey.” Shavonda Polk, the Defendant’s girlfriend, testified that the Defendant’s

nickname is “Ace,” not “Monkey,” and that the Defendant has “Ace” tattooed on the back

of his neck. She also stated that the Defendant does not own or drive a black Ford Taurus.

However, on cross-examination she admitted that her relationship with the Defendant was

inconsistent and that she could not be certain that he did not own or drive a black Ford

Taurus.

ANALYSIS

Motion to Suppress

The Defendant argues that the trial court erred in denying his motion to suppress the

evidence found in his vehicle and his statement to Agent Miller because the traffic stop and

resulting search were unlawful. The State contends that Agent Miller had probable cause to

stop the Defendant’s car because he was speeding and that once he smelled the marijuana,

he had probable cause to search the car.

Agent Miller was the only witness who testified at the suppression hearing. He

recounted the substance of the drug deal as discussed above, and he discussed the traffic stop

in further detail. He stated that he stopped the Defendant for rolling through the stop sign

and speeding because he did not want the Defendant to know that Ms. Griffin was a

confidential informant. He recounted that once he approached the vehicle, he noticed a

“strong odor of marijuana emitting from the vehicle.” Agent Miller testified that he told the

Defendant that he had probable cause to search the car based upon his detection of a

marijuana smell and that the Defendant admitted that marijuana had been in the car recently.

Agent Miller testified that the Defendant stated that he understood and disclosed that there

was a weapon under the driver’s seat. In searching for the weapon, Agent Miller noticed

marijuana residue in the carpeting, but he could not see the weapon from the front because

it “[l]ooked like the construction of the seat had been manipulated into a holster . . . where

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the weapon would slide in under the seat.” In order to retrieve the gun, Agent Miller had to

search from the backseat of the car under the driver’s seat. After he secured the weapon, he

continued to search the car and even “[s]tuck [his] hands up in the headliner of the vehicle.”

In the headliner, he found “four to eight bags containing crack cocaine individually

packaged.”

Agent Miller testified that after he found the evidence in the car, he advised the

Defendant of his Miranda rights, and the Defendant waived his rights. Agent Miller stated

that the Defendant admitted that he smoked crack cocaine on occasion and that he had been

involved in “illegal distribution of crack cocaine for at least a year or more.” The Defendant

admitted ownership of the pistol, the crack cocaine, and the shotgun found in the trunk. The

Defendant also told him that he was purchasing all of his crack cocaine from Colby Reynolds

and that he would like to work as a confidential informant. After the Defendant agreed to

cooperate, Agent Miller let the Defendant go and exchanged telephone numbers with him,

but the Defendant never called him.

At the conclusion of the hearing, the trial court found that Agent Miller had probable

cause to stop the Defendant because the Defendant ran a stop sign and that Agent Miller had

probable cause to search the car when he noticed the odor of marijuana. The trial court

further stated that Agent Miller was “entitled to arrest the [D]efendant after [he] observed

the marijuana,” and that once the Defendant “alerted them to a loaded weapon under the seat

which had been recovered” he had the right to seize the car and do an inventory search of the

vehicle. Therefore, the trial court concluded that, pursuant to the inevitable discovery

doctrine, the shotgun found in the trunk and the “four to eight bags [of crack cocaine] found

in the headliner would have ultimately been found.” The trial court also noted the

Defendant’s statement to Agent Miller, but the trial court stated that the “voluntariness of

that statement [was] not attacked or not at issue in this case.”

A trial court’s findings of fact on a motion to suppress are conclusive on appeal unless

the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).

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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Both proof presented at the

suppression hearing and proof presented at trial may be considered by an appellate court in

deciding the propriety of the trial court’s ruling on a motion to suppress. State v. Henning,

975 S.W.2d 290, 299 (Tenn. 1998); State v. Perry, 13 S.W.3d 724, 737 (Tenn. Crim. App.

1999). However, 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.” Odom, 928 S.W.2d at 23. Furthermore,

an appellate court’s review of the trial court’s application of law to the facts is conducted

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under a de novo standard of review. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)

(citations omitted).

The Fourth Amendment to the United States Constitution and article I, section 7 of

the Tennessee Constitution protect against unreasonable searches and seizures. Any

“warrantless search or seizure is presumed [to be] unreasonable, and evidence discovered as

a result thereof is subject to suppression unless the State demonstrates by a preponderance

of the evidence that the search or seizure was conducted pursuant to one of the narrowly

defined exceptions to the warrant requirement.” State v. Simpson, 968 S.W.2d 776, 780

(Tenn. 1998). “Exceptions to the warrant requirement include searches incident to arrest,

plain view, hot pursuit, exigent circumstances, and others, such as the consent to search.”

State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007) (citing State v. Cox, 171 S.W.3d 174, 179

(Tenn. 2005)). Additionally, a police officer may make “an investigatory stop based upon

reasonable suspicion, supported by specific and articulable facts, that a criminal offense has

been or is about to be committed.” State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000); Terry

v. Ohio, 392 U.S. 1, 20-21 (1968).

In this case, the trial court found that Agent Miller observed the Defendant running

through a stop sign, which is a Class C misdemeanor. See Tenn. Code Ann. § 55-8-149. Our

supreme court has stated that

[T]he protection afforded by [a]rticle I, section 7 of the

Tennessee Constitution is co-extensive with the protection

afforded by the Fourth Amendment to the United States

Constitution. Accordingly, a stop based upon probable cause is

valid under the Tennessee Constitution, without regard to the

actual subjective motivations of police officers.

State v. Vineyard, 958 S.W.2d 730, 731 (Tenn. 1997). In so holding, the Tennessee supreme

court adopted the “Supreme Court’s interpretation of the Fourth Amendment in [Whren v.

United States, 517 U.S. 806 (1996)].” Vineyard, 958 S.W.2d at 736. Regardless of Agent

Miller’s motivation for stopping the Defendant, he had probable cause to stop the Defendant

when he observed him running through the stop sign. See State v. Whitney Ann Graves, No.

M2007-02415-CCA-R3-CD, 2008 WL 5263431, at *3 (Tenn. Crim. App. Dec. 17, 2008),

perm. app. denied (Tenn. May 4, 2009).

When Agent Miller smelled marijuana in the Defendant’s vehicle, he had probable

cause to search the vehicle pursuant to the exigent circumstances relating to the inherent

mobility of automobiles. Hicks v. State, 534 S.W.2d 872, 873-74 (Tenn. Crim. App. 1975)

(holding that the smell of marijuana emanating from the defendant’s car provided the officer

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with probable cause to search the vehicle given the inherent mobility of automobiles); see

also State v. Saine, 297 S.W.3d 199, 207 (Tenn. 2009) (“[T]he automobile exception does

not require a separate finding of exigency in addition to a finding of probable cause under

the United States Constitution.” (quoting Maryland v. Dyson, 527 U.S. 465, 466-67 (1999))).

“The rationale for the automobile exception [to the warrant requirement] is two-fold. First,

it is often impractical for officers to obtain search warrants in light of the inherent mobility

of automobiles. Second, individuals have a reduced expectation of privacy in their

automobiles.” Saine, 297 S.W.3d at 207 (citations omitted).

The scope of Agent Miller’s search was “defined by the object of the search and the

places in which there is probable cause to believe that it may be found.” United States v.

Ross, 456 U.S. 798, 824 (1982); see also State v. McCrary, 45 S.W.3d 36 (Tenn. Crim. App.

2000). Here, Agent Miller was searching for marijuana, guns, and any evidence of the

undercover drug buy. Consequently, Agent Miller’s probable cause to search extended to

all parts of the vehicle, including the headliner and the trunk. Ross, 456 U.S. at 824; see also

State v. Ricky Allen Frazier, No. E2003-02853-CCA-R3-CD, 2004 WL 1541306, at *5

(Tenn. Crim. App. July 9, 2004) (“If probable cause justifies a search of a vehicle, it justifies

a search of every part of the vehicle, including the trunk.” (citing Ross, 456 U.S. at 823-24)).

Following our review, we conclude that the trial court did not abuse its discretion in denying

the Defendant’s motion to suppress.

Sufficiency

The Defendant argues that the evidence was insufficient to convict him of Counts 1

and 2, sale and delivery of a Schedule II Controlled Substance. The Defendant states that the

proof was not sufficient to show that the Defendant was driving the car at the time of the

drug deal, and the one person who identified the Defendant was an unreliable confidential

informant. The Defendant also argues that the evidence was insufficient to convict him of

Count 5, possession of a deadly weapon with intent to employ it in the commission of an

offense. He contends that Ms. Griffin did not state that she saw a gun or was threatened in

any way. Moreover, the Defendant never got out of the car, and the weapons were not in a

location where they could have been retrieved quickly. The State argues that the evidence

was sufficient to convict the Defendant.

An appellate court’s standard of review when a defendant questions the sufficiency

of the evidence on appeal is “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The

appellate court does not reweigh the evidence; rather, it presumes that the jury has resolved

all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor

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of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978).

Questions regarding witness credibility, conflicts in testimony, and the weight and

value to be given to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651,

659 (Tenn. 1997). “A verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, and [on appeal] the defendant has the burden of illustrating

why the evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon

direct evidence, circumstantial evidence, or a combination of direct and circumstantial

evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

Counts 1 and 2

The convictions of selling and delivering .5 grams or more of a cocaine base requires

proof that the Defendant knowingly sold and delivered a controlled substance. Tenn. Code

Ann. § 39-17-417(a)(2)(3). The evidence in this case relating to Counts 1 and 2 was

overwhelming. Ms. Griffin and all three of the agents identified the Defendant at trial as the

person who provided the drugs in the undercover drug operation. We do note that Ms.

Griffin was a narcotics user and was paid for her cooperation. However, she was followed

by the agents at all times, and her conversations with the Defendant were recorded

throughout the entire undercover operation. More importantly, the jury chose to accredit her

testimony. Ms Griffin and the agents confirmed that she called the Defendant’s cellular

telephone number to set up the drug deal, and Agent Miller testified that the cellular

telephone number that the Defendant gave him was the same number that Ms. Griffin used

to call the Defendant. Agents recovered one hundred and seventy dollars from the

Defendant, one hundred and fifty of which corresponded to the money given to Ms. Griffin.

Although there was some discussion regarding the fact that the Agents thought the

Defendant’s name was Talvin Armstrong, the agents were clear that they knew the Defendant

as “Monkey” and that they were certain that “Monkey” was Tywan Armstrong. Following

our review, although we do note that these convictions were merged at sentencing, we

conclude that the evidence was sufficient to support his convictions in Counts 1 and 2.

Count 5

The conviction of Count 5 in the indictment requires proof that the Defendant

possessed a deadly weapon with the intent to “employ it in the commission of or escape from

an offense.” Tenn. Code Ann. § 39-17-1307(c)(1) (2006). In order to convict the Defendant

of this offense, the State had to prove that the Defendant had the appropriate intent and that

he either possessed the weapon or that he knowingly had the “power and the intention at a

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given time to exercise dominion and control over [the weapon], either directly or through

others.” State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) (citations

omitted).

Whether the Defendant had the appropriate intent and actually possessed or

constructively possessed any weapons during the commission of the felony was for the jury

to determine. State v. Steven D. Pittman, No. M199900320-CCA-R3-CD, 2000 WL 374755,

at *3 (Tenn. Crim. App. April 7, 2000), perm. app. denied (Tenn. July 31, 2000) (citations

omitted). The weapons involved were loaded, and they were found under the driver’s seat

and in the trunk of the car. According to the testimony presented at the suppression hearing

and at trial, the gun under the driver’s seat was in a makeshift holster that was wedged into

the construction of the seat. The Defendant knew where the gun was located because he told

Agent Miller how to retrieve the gun. The Defendant and his car were watched from the time

he arrived at the drug buy until he was arrested. The agents did not observe the Defendant

removing weapons or bringing weapons to the vehicle after the undercover operation; thus,

it is reasonable to believe that whatever was inside the car at the time of his arrest was in the

car at the time of the commission of the felony. The loaded weapon was within the

Defendant’s reach, and he knew how to retrieve the weapon; these facts together “permit[]

a reasonable inference that, if necessary, [the] Defendant was prepared to use the gun” in the

commission of the felony. See State v. David Wayne Bernard, No. E2005-00852-CCA-R3-

CD, 2006 WL 1063687, at *6 (Tenn. Crim. App. Apr. 21, 2006) (upholding conviction for

similar offense when gun was found in trunk of vehicle). Accordingly, we conclude that the

evidence was sufficient to support his conviction in Count 5.

Sentencing

The Defendant argues that his sentence should be reduced because the trial court did

not apply the mitigating factors suggested by the Defendant. The State argues that the trial

court acted within its discretion in refusing to apply the submitted mitigating factors.

An appellate court’s review of sentencing is de novo on the record with a presumption

that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the

Sentencing Commission Comments to this section note, on appeal the burden is on the

Defendant to show that the sentence is improper. This means that if the trial court followed

the statutory sentencing procedure, made findings of fact that are adequately supported in the

record, and gave due consideration and proper weight to the factors and principles that are

relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence

even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.

App. 1991).

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However, “the presumption of correctness which accompanies the trial court’s action

is conditioned upon the affirmative showing in the record that the trial court considered the

sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

[T]he trial court must place on the record its reasons for

arriving at the final sentencing decision, identify the

mitigating and enhancement factors found, state the

specific factssupporting each enhancement factor found,

and articulate how the mitigating and enhancement

factors have been evaluated and balanced in determining

the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann.

§ 40-35-210(e).

The Defendant committed this offense on April 26, 2007; thus, he was sentenced

under the revised sentencing act as enacted by the Tennessee General Assembly in 2005.

The act provides that:

(c) The court shall impose a sentence within the range of

punishment, determined by whether the defendant is a mitigated,

standard, persistent, career, or repeat violent offender. In

imposing a specific sentence within the range of punishment, the

court shall consider, but is not bound by, the following advisory

sentencing guidelines:

(1) The minimum sentence within the range of

punishment is the sentence that should be

imposed, because the general assembly set the

minimum length of sentence for each felony class

to reflect the relative seriousness of each criminal

offense in the felony classifications; and

(2) The sentence length within the range should

be adjusted, as appropriate, by the presence or

absence of mitigating and enhancement factorsset

out in §§ 40-35-113 and 40-35-114.

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Tenn. Code Ann. § 40-35-210(c)(1)-(2).

The weight to be afforded an enhancement or mitigating factor is left to the trial

court’s discretion so long as its use complies with the purposes and principles of the 1989

Sentencing Act and the court’s findings are adequately supported by the record. Id. § (d)-(f);

State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore

bound by a trial court’s decision as to the length of the sentence imposed so long as it is

imposed in a manner consistent with the purposes and principles set out in . . . the Sentencing

Act.” Carter, 254 S.W.3d at 346. Accordingly, on appeal we may only review whether the

enhancement and mitigating factors were supported by the record and whether their

application was not otherwise barred by statute. Id.

In conducting its de novo review, the appellate court must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature and

characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,

(6) any statement that the defendant made on his own behalf, (7) the defendant’s potential

for rehabilitation or treatment, and (8) any statistical information provided by the

Administrative Office of the Courts as to sentencing practices for similar offenses in

Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168;

State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

After reviewing the record, we conclude that the trial court considered the appropriate

sentencing principles and all relevant facts and circumstances in the Defendant’s case. Thus,

we will review the trial court’s sentencing decision in this case under a de novo standard of

review with a presumption that the trial court’s sentencing decisions were correct.

The State submitted the following two enhancement factors: (1) the defendant has a

previous history of criminal convictions or criminal behavior, in addition to those necessary

to establish the appropriate range; and (10) the defendant had no hesitation about committing

a crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(1), (10). The

trial court applied enhancement factor 1 but declined to apply enhancement factor 10. In

applying enhancement factor 1, the trial court noted all of the Defendant’s previous criminal

convictions and criminal conduct. The Defendant does not challenge the imposition of the

enhancement factor; therefore, we will not discuss the court’s decisions on this issue other

than to say that the record supports the trial court’s application of the enhancement factor.

The Defendant requested that the trial court consider the Defendant as an especially

mitigated offender and also submitted the following three mitigating factors:

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(1) The defendant’s criminal conduct neither caused nor

threatened serious bodily injury;

(7) The defendant was motivated by a desire to provide

necessities for the defendant’s family or the defendant’s self;

(13) Any other factor consistent with the purpose of [the

Tennessee Criminal Sentencing Reform Act of 1989, including

but not limited to the fact that Defendant has sought drug

rehabilitation]

Tenn. Code Ann. § 40-35-113(1), (7), (13).

The trial court considered but declined to apply the three mitigating factors submitted

by the Defendant. In regards to mitigating factor 1, the trial court stated that “the law does

not recognize that the [D]efendant’s conduct neither caused nor threatened serious bodily

injury.” The court compared this mitigating factor with enhancement factor 10 submitted by

the state and stated that the legislature has already taken the dangerousness of cocaine into

account when setting the range of sentencing for this particular offense. In declining to apply

mitigating factor 7, the court stated:

I don’t find [that] the proof brings that out. Clearly, every time

somebody commits a crime, you can argue that in every case

where there’s some element or profit involved, and I don’t

believe that mitigating factor is broad enough to cover that. You

have to prove something more, that the [D]efendant was

motivated by [a] desire to provide necessities for the

[D]efendant’s family or the [D]efendant’s self. I don’t believe

that the proof rises to that level.

In declining to apply the final mitigating factor, the trial court noted that the Defendant’s

attempts at rehabilitation conflicted with a scheduled court date in this case. Also, the trial

court stated that “seven days [of drug rehabilitation] given that kind of eight ball every other

7

day drug usage is not sufficient to make that mitigating factor or to be - - no disrespect,

would not be sufficient [rehabilitation] for that kind of drug problem.”

The record indicates that the Defendant completed a fourteen day treatment program at the Plateau

7

Mental Health, New Leaf Recovery Center. 

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In sentencing the Defendant, the trial court merged Count 2 and Count 4 with Count

1 and Count 3, respectively. After denying alternative sentencing and declining to afford any

weight to the submitted mitigating factors, the trial court imposed sentences in the middle of

the range for all of the Defendant’s convictions, ordering all sentences to be served

concurrently. In regards to Counts 1 and 3, both Class B felonies, the trial court imposed

sentences of 10 years out of a possible sentence of 8 to 12 years. In regards to Count 5, a

Class E felony, the trial court imposed a sentence of 1 year and 6 months out of a possible

sentence of 1 to 2 years.

The record reflects that the trial court followed the applicable sentencing principles

and appropriately found the existence of applicable enhancement factors. The record shows

that the trial court gave proper consideration, but no weight, to any proposed mitigating

factors. Under the revised sentencing act, this court may not review the weight afforded the

enhancing and mitigating factors provided the trial court followed the principles of

sentencing. Given that the enhancement factor was supported by the record and that the trial

court considered the mitigating factors as required, we conclude that the trial court followed

the appropriate sentencing principles in this case. Accordingly, we affirm the Defendant’s

sentences.

CONCLUSION

In consideration of the foregoing and the record as a whole, the judgments of the trial

court are affirmed.

________________________________

D. KELLY THOMAS, JR., JUDGE

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