### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON April 10, 2001 Session

STATE OF TENNESSEE v. RO GER NEAL JAMES and

GEORGE OSBORNE WADE
Direct Appeal from the Circuit Court for Obion County No. 9-430 William B. Acree, Judge

No. W2000-01301-CCA-R3-CD - Filed March 15, 2002

Following a

consolidated trial, an Obion County Jury convicted Defendant Roger Neal James of the delivery of a co ntrolled s u bstance within 1,000 feet of a school. The jury convicted De fendant George Osborne Wade of the sale of a controlled substance within 1,000 feet of a school. The trial court sentenced Defendant James to twenty-five ye ars incarceration and Defendant W ade to twentythree years incarceration. Both Defendants now appea l. Defendant

James contests the sufficiency of the convicting evidence, the admission at trial of evidence conc erning a second drug transaction that took place after the transaction in this case, and the le ngth of his sentence. Defendant Wade also contests the sufficiency of the convicting evidence. In addition, he argues that the trial court erred by refusing to grant a continuance of the cas e and tha t the Drug -Free School Zone Act is unconstit utional a s applied

to his cas e. After

review, we affi

rm the judg ments of th

e trial c ourt.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J OHN E VERETT W ILL IAMS , J., joined. J OE G. R ILEY , J., not participating.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Colin Johnson, Dresden, Tennessee, (at trial and on ap

peal), f or the Ap

pellant, Roger Ne al James. Mary Elle n Ste vens, Un ion City, Tennessee, for the Appellant, George O sborne Wade.

Paul G. Summers, Attorney General and Rep orte r; Kim R. He lper, Ass istant Atto

rney Ge neral; Thomas A. Thomas, D istrict At torney General ; and James T. Cannon, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

In October

1999, the Obion Coun

ty Grand Jury indicted the Def endants, Roger Neal James and George Osborne Wade, for one count each of the sale of a controlled substance and for one count-2-

eachof the delivery

of a controlled substance. The indictment charging both Defendants alleged

that the sale and delivery

of the controlled substance occurred “on the g rounds or facilities of a school
or within one thousand feet . . . of the real property that c omprised a public or private elementary school, middle school or sec ondary school.”Follo wing a trial, an Obion County jury convicted Roger Neal James of the delivery of a cont rolled su bstance within 1,00 0 feet of

a school. The jury convictedGeorg e Osborne Wade of the sale of a controlled substance within 1,000 feet of a school. The trial court

sentenced Defendant James to twenty -five ye ars incarceration and Defendant Wade to twenty-three

years inc arceration.

Pursuant to Tenne ssee Rule

of Appell a te Proce dure 3, b oth Defe ndants now

appeal. Defendant

James presents three issues for our review: (1) whether suffic ient evidence was presented at trial to support his conviction; (2) whether the trial court err ed byallowing into evidence proof of a second, unrelated drug

transaction; and

(3) whe ther the trial cou rt erre d by

imposing upon him the maxi mu m possible sentence in his range. Defenda nt Wade also presents three issues for our review: (1) whether sufficient evidence wa s presented at trial to support his conviction; (2) whether the trial court erred by

refusing to grant a continuanc e of the trial; a nd (3) whether the Drug-F ree School Zone Ac t, Tennessee Code Annotated § 39-17-432, is unconstitutional as applied to this case. We affir m the judg ments of th

e trial c ourt.

I. F ACTS

The following proof was presented at the consolidated tr ial of both Defendants: Lieutena nt Rick Ke lly of the Union City Police Department testified that at he was assigned to the Tw enty

Seventh Judicial D ist rict Violent Crime and Drug Task Force . He stated that at the time of the crimes in this case, he was working on an undercove r operation with Officer Kenneth Jones of the Milan Police Department and with a confidential informant named

James Coble . Lie

utenant K elly testified that Coble began to work for the Task F orce be cause “ [h]e had a c rack pr oblem.” K

elly explained that “confidential informants, for the most part, are people that are in the community that have drug pr

oblems an d are inv olved in the dru g busine ss.” Kell y e xplained th at Coble “ came to [the Task Force] because he had a c ocaine problem, he lost his truck, he got agg ravated because of that, . . . and he wanted to do something about the drug proble m.” Kelly stated t

h at Coble, in his capaci ty as a confidential informant, was instructed either to make dru g purc hases fo

r himself or to introduce police of

ficers to “the right people” from whom the unde rcover officers could make purchas es. Accord ing t o Lie utenant K

elly , the Task

Force paid Coble

a total of

$4,000 fo

r his employment and $70 for his ser vices involving the Defendants in this case.

Lieutenant

Kelly testified that on Fe

bruary 12, 1999, he

and other officers met

James Coble and Officer Jones, who was to pose as a drug buy er, at a predetermined location. At the location, the officers search

ed Coble and equipped him with “a wire”; Officer Jones was provided with “buy
mo ne y” in the amount of $250. The officers then began to monitor the “wire” that was placed on Coble as Coble and Jones left the location.-3-

Kelly testified that Coble and Off icer Jones drove

to sever al locati ons looking

for peop le f romwhom to buy

drugs. He state d that at 2 :32 p.m., th e two men e

ventuall y a rriv ed at a hous e locatedat 619 Morgan Street in Union City . Kelly repor ted that the house was located 351 feet from
an elementary

school, and he stated that he had measured the distan ce with a measuring whee l. Kelly testified that he listened to the transaction through the wire worn by Coble, and at

2:37 p.m., “a black male said that he had g one to get it . . . .” Kelly stated that Coble and Jones left the residence at approximately 2:41 p.m. with drugs obtained from the black male. After the transaction, Kelly collected the drugs, sealed them in an evidence bag, and hand-delivered them to the cr ime lab.

On cross-examination, Kelly testified that after the transaction, Officer Jones told the other officers over his monitor

that he had “just dealt with Baby George.” Kelly

identified “Baby

George”
as Defendant George Wade. K elly also stated on cross- examination that the wheel used to measure the distance between the house where the dr ug transaction took place

and the elementary

school was notcalibrated before

he used it to make the measurement. However, he te stified that as he made the measurement, he “also stepped it off.”

Lisa Mays next testified

at trial. She state d that she is employ

ed as a sp ecial a

gent fo rensic scientist by the Tennessee Bureau of I

nvestigation Crime Laborator y in Jackson, Tennessee. Ma ys testified that she anal yzed thesubstance at issue in this case. She reported that the substance contained1.9 gra

ms o f cocaine base, a Schedule II drug which is commonly referred to as “crac

k cocain e. ” On cross -examinat ion, May s stated th at she did not perf orm a qua

ntitative analy sis to determine what percentage of the 1.9grams was actually coc aine; she testified that her tests revealed only that the substance c ontained cocaine base and that “it is relatively pure.”

Kenneth Jones of the

Milan Polic e Depar

tment test ified tha t he is a narcotics investigator for the West Tennessee Judicial Violent Crime and Drug Task Force, a nd he stated that he was involved in the undercover operation involving the Defendants in this case. Jones recalled that on February 12, 1999, he visited several locations with Lieutenant Kelly and James Coble, eventually ending up at the home on Morgan Street sometime after 12:00 p.m. Ther e, Jones ca

me into co ntact wit

h a male subject whose str eet name is “Swee t James” and whom Jones identified in court as Defendant Roger Neal James. Jones reported that he asked Sweet James if he knew w

here Jone s could

purchase $250 worth of crack cocaine. Acc ording to Jones, “Sweet James went

and talke d to anothe

r black m ale by the name of Baby

George. [They ] then went int o the house. Sweet James come [sic] into the house and told [the officers and Coble] that Baby George would be back in about five minutes, that he wa s going to get it.” I n court, Jones identified the individual known as “Baby George” as Defendant Wade.

Officer Jones testified that after Defendant Wade left the house, he waited at the house for Defendant

Wade’s return. Jones recalled that less than five minutes later, Defendant Wade returned and entered the kitchen of the home, followed by Defendant James. Accord ing to Office

r Jones, le ss than five minutes later, Defendant James exited the kitchen, approached him and Coble, asked them “who had the money,”and then instructed them to fol low him into the kitchen. Jones testified, “Baby Georg e had a la

rge ro ck with

crack in the kitchen, cutting smaller rocks off with a knife. He-4-

then put ‘em in

a plastic bag, handed the plastic bag to . . . Sweet Jame s. Sweet Jam es hande d me the plastic bag. I ha

nded Sweet James the $250.00. I asked Ba by Ge orge if that was the best he could do, and he said, ‘Yes.’ And then Sweet James handedBaby G eorge the money , and I left the kitchen.” Jones repo

rted tha t after t he trans acti on, he and the cooperating witness went to a predetermined location where they met Agent Kelly

and gave him the drugs.

Officer Jones stated that the entire transaction took approxima

tely a minute and a half. Jones maintained, however, that he had “no doubt in [his] mind at all” that the Defe ndants were the two
men involved in the transaction. He stated that when he saw both men in the kitchen, “[i]t was daylight with the su n shi ning t hrou gh . . . the windows.” Jones also stated that he had seen Defendant

James prior to the transaction and that he had seen a photograph of Defendant Wade since the time of the transaction.

Defendant

Wade pre sented se

veral wi tnesses in his defense. Twanii Sanders testified that at the ti me of

the crimes in this case, she and Defendant Wade we re romantically -involved roommates. She stated that neither she nor Defendant Wade had ever

lived at 6 19 Morg an Stree t, the house where the transaction now at issue took place, a nd she maintainedthat she and Defendant Wade “were together from about 12:3 0 till about 5 . . . .” on the date of the crimes. Sanders rec alled that at the time surr

ounding the crime s, she and

Defend ant Wade w ere in the proce ss of movin g into
a new apartment. She reported that on Februa ry 12, 1999, she and Defen dant Wade were a t their home until shortly after 1:00 p.m., when they met with the person who was to be their new landlord. Sanders testified that the landlord showed them the apartment that they wished to

rent at that time, and she stated that they finished viewing the apartment

at approximately 1:30 p.m. She testified that she “believe[d]” that she and Defendant Wade then

went to the

cable c ompany

to set up service at the new apartment, an errand which took approximately ten to fifteen minutes. Sanders reported that she and Defendant Wade next went to the bank, and later in the afte rnoon, the

y vi sited the e

lectric company at approximately 2:45 p.m., wh ere the y st ayed until approximately 3:30 p.m. Sanders testified that after leaving the electric c ompany, she and De fendant Wade visited the water company and then went to a store to buy c leaning supplies. Sanders statedthat at approximately 4:30 or 5:00 p.m., she andDefend ant Wade w ent to the ir new apa rtment. Sa

nders recalled th at she soo n left to pick up a friend who planned to help her clean. W hen she returned to the apartment, Defenda nt Wade left the apartment at approximately 5:00 p.m. Sanders testified that she did not know where Wade went after he left their apartment that eve ning, but she stated that he returned to the apartment later tha t night a nd painte d his room.

Sanders t estified that she w as acqua

inted with

Defendant James. She stated that she knew him as “Sweets,” but called him “Sugar.” Sander s reported that Defendant James helped move a couch into her new apartment after dark on F ebru ar y 1 2, 1999. On cross-examination, Sanders testi fied that at the time of the crimes in this case, Defendant Wade drove a light blue, two- doo r Monte Carlo. Finally, Sanderstestifie d that she and Def endant Wa

de had been corr

esponding

while he was in prison, and she stated that “depending on the time” that Wade might be required to serve in prison, sh

e could be

interest ed in renewing t

heir relationship

once Wade

was rele ase d fro m cu st od y.-5-

Steve Goodrich testified that he owned the house located at 619 Morgan Street. He stated that on February

12, 1999, Nedra

Harris a nd Glen Howard were renting the property. Goodr

ich explained that Glen

Howard w as the actual tena nt of the h ouseand state d that Ms. H arris, h is aunt,
was merely

a co-sig ner on the lease. Goodrich r

eported that Glen Howard l ived in the house

from February until approximately the end of May . Goodrich testified that Howard became delinquent on his rental payments in April, and Goodrich subsequently ser ved Howard an eviction notice.

Edna Roney testified that she owns the apartment that Defendant Wade and Twa nii Sanders rentedon February

12, 1999. Roney

stated tha t Sanderswas still r

enting t he prope rty at the time of trial and that

Defendant Wade “came with [Sanders] when [Sanders] rented it.” Roney recalled that both Sanders and Defendant Wade signed the lea se on February 12, 1999. Roney

could not r

ecall the exact time of day that she met with Sander s and Defendant Wade on February 12 , 19 99. She stated, “I think it might have been a round noon, but I wou ldn’t tell that for the real truth, ‘cause I don’t know. I just have so many , I can’t remembe r.”
Joy Carson testified that she works at First State Bank in Union City as a bookkeepe

r. She stated that she reviewed bank records from F ebruary 12, 1999 and could confirm that a withdrawal took place f rom Twan

ii Sanders’ bank account

at 2:05 p.m. that day. She repor ted that she did not handle the transaction herself, but stated that she rec ognized Sanders’ signature on the bank slip.

Penn y Petty testifie d that she

was a Cust

omer Ser vice Rep resenta tive for t he Union Ci

ty Electric Syst em. Petty

reporte d that on F

ebruar y 12 , 1999, a d

eposit fo r servic e was made in the
name of Twani i Sanders. She stated that the “meter order was made at 3:38" in the afternoon, and she testifie d that the

person ma

king the deposit is u sually

present at the time

that a met

er orde r is made.

Defendant

James testified on his own behalf at trial. Hefirst admitted that on February 12, 1999, he was at the house located at 619 Morga n Street. However, he claimed that he was there to clean the carpets in the house, as requested by the owners of the property . Defendant James testified that James Coble stopped by the house while he was w orking there. James reported that he was alone in the house when Coble stoppedby beca use the tenant of the house, Glen Howard, had gone to the store to purchase extra “carpet shampoo.” Accord ing to De fendant James, Coble

asked him : “Is an y bod y se lli ng an y thi nghere ?” Defendant James testified that he told Coble he “didn’t know” and that no one was in the house except him. James st

ated tha t Coble the

n left an d returned ten to fifteen minutes later

with another man. He testified that although he was unsure , he thought that the man who arrived at the house with Coble was Officer Kenneth Jones.

Defendant

James testified that when Coble and the man whom he believed to be Officer Jones returned to the house, Howard had also returne d to the house. James rep orted t hat Howard and the man went into t he kitchen while he and Coble remained in the living room. Def endant James stated that he had

“a good idea” of what the two men we

re doing in the kitchen bec ause Cobl e had previously “aske d about some drugs.” Defendant James reported tha t the man stayed in th e kitchen for approximately ten minutes, returne d to the living room, lookedat Coble, and asked, “Are-6-

you re ady to g o?” According to James, the man then told Howard, “Thanks a lot” and departe d. Defendant

James claimed that Defendant Wade was not present at the house at any time during the afternoon of February

12, 1999.

On rebuttal, the State recalled Officer Kenne th Jones to the stand. Jones reite rated th at both Defendant

James and D efenda

nt Wade we

re pres ent at the

house on Morgan Street on

February 12, 1999. He testified that when working undercover, it is very important

for an undercove

r office r to ascert ain the ident

ity of the individuals who sell drugs to him or her. He stated, “You make sure y ou visua lize that person. You put that person’s looks, identify in y our memory, in y

our focus, and y ou keep it there because that’s going to be . . . very important.” In addition, Officer Jones reca lled that
a light blue Monte Carlo was parked in front of the house during the trans actio n on February 12, 1999.

Officer

Jones further testified that on February 17, 1999, he returned

with James Coble to the house on Morgan Street, again while wor king undercover. Jones rep orted tha t a second drug transaction took plac e on Feb ruary 17, 1999. Jones sta

ted that on Fe bruary 17, 1999, se veral subjects were present at the house, including De fendant James and Glen Howard.

The State also called James Coble to the stand on r ebutt al. Coble testified that Defendant James and Defendant

Wade were involved in the drug transaction that took place on February

12, 1999. He stated that Defendant Wade “drove up in the car ” after he, Officer Jones and Defendant James had entered the house on Morgan Street. Coble furthe r testified that

on February

17, 1999, he returned to the house, where h e sa w Defendant James and Glen Howard. Coble reported tha t Defendant Wade was not present during the tr ansaction that took place on February 17, 1999.

On cross-e

xamination, James Coble discusse d his prior

criminal record. He stated that he ha d p re vi ou sl y be en co nv ic te d o f f or ge ry, re ce iv in g s to le n p ro pe rt y, and food stamp fraud. Coble reported that no ch argeswere pe

nding a gainst h imat the time he began to work for the Drug Ta sk Force. Coble testified that he started using coc aine in 1992 and stopped using it in 1998, when he went to a reha bilitation progra m; he stated that he was smoking marijuana during the time he was employed by the Drug

Task Force, but

he denied that he smoked marijuana during the hours that he
was actual ly workin g. Coble testified that he was unemployed and stated tha t he decided to work for the Drug Task Force after he beca

me involved in “a feud with some drug dealers ove r a truck that [he] owned.” He h oped to “g et [his] truck back” while working for the Drug Ta sk Force, and he stated that he began working a s an informant “to make money .”

II. AN ALYS IS
A. Sufficiency of the Evidence

Both Defend ants cont

end that i nsuffic ient evid ence wa s presen

ted at tri al to support their convicti ons. When an a ccused challenges the sufficie ncy of the e

vidence, an appellate court’s standardo f review is whether, after considering the e vidence in the light most favorable to the-7-

prosecution, any r

ational trier of

fact could havefound the essential elements of the crime bey ond
a reasona ble doubt. Tenn. R. A

pp. P. 13(e ); Jackson v

. Virgini a , 443 U.S. 3 07, 324 (1 979); State

v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence , or a co mbination of both direct and circumstantial evidence. State v. Pe

nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

In determining the sufficie ncy of the evidence, this Court s hould not r e-weig h or re- evaluat

e the e vidence. State v. Matthews , 805 S.W.2d 7 76, 779 (T enn. Crim. App. 1990 ). Nor ma y th is Courtsubstitute

its infer ences f or those drawn by the trier of f

act from the evidence. Stat e v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999); Liak as v. State , 286 S.W.2d 856, 859 (Tenn. 1956) . Questions concerning the credibility of the witnesse s, the weight and v alue of t he evide nce, as w ell as all factual issues raised by the e vidence are resolved by

the trier of fact. Liakas , 286 S.W.2d at 8 59. This Court must afford the State of Tennessee the stronge st legitimate view of the evidence containedin the re cord, aswell as a ll reasonable inferences which may be drawn from the evidence. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of g uilt against a defendant
removes the presumption of innocence and raises a presum p tion of guilt, the convicted criminal defendant bears the burden of

showing that the e vidence was leg ally

insuffic ient to sust

ain a gu ilty verdict. Id.

Defendant

Roger Neal James was convicted of the delivery of a controlled substancewithin 1,000 feet of

a scho ol. De fendan t Geor ge Osborne Wade was convicted of the sale of a controlled substance within 1,00 0 feet of a school. Tenness ee Code A nnotated § 39-17-4 17 states that it is an offense for a defendant

to knowingly “[d]eliver a contr olled substance,” Tenn. Code Ann. § 39-17- 417(a)(2), or to k nowingl y “[s]ell a controlled substance.” Id. § 39-17-4 17(a)( 3). Coca ine is considered

a Schedule II

controlled substance. See id. § 39-17-408(b)(4). “‘ De li ve r’ or ‘d el iv er y’
means the actual, co nstru ctive, or attempted transfer from one person to anothe r of a controlled substance, where or

not there is an agency

relationship . . . .” Id. § 39-1 7-402 (6). Fi nally, t he DrugFree School Zone Act states that “[a] violation of § 39-17-417 . . . t hat occurs on the grounds or facilities of any school or within one thous an d feet ( 1,000') of the re al prope rty that comp

rises a public or pr ivate elemen tary school, middle school or sec ondary school shall be punishe d one (1) classification higher

than is provided in § 39-17-417(b)-(i) for such violation.” Id. § 39-17-432(b).

The Statepresented the following evidence at tria l: Officer Kenneth Jones testified that he encountered

Defend ant James a

t approxima

tely midday in a priva te residence and asked

James if he knew where Jones could

purchas e cocaine. Off

icer Jone s stated th at Defe ndant Jame s spoke with Defendant

Wade, who left the property and returned shortly . Jones st ated tha t both Def

endants entered the kitchen of the house and that Defendant Jam es then approached Jones and asked for
mo ne y. Jone s test ified that D efenda nt Wa de cut a port ion o f crack cocain e, put it in a bag, an d handedit to Defendant James, who in turn handed the bag to Jones. Officer Jones stated that he the n gaveDefendant James money in e xchange for the cocaine, and De fendant James handed the money to Defendant Wa de. An emplo yee of the Tennessee Bu rea u of Investigation Crime L aboratory verified that the su

bstance which Of

ficer Jone s obta

ined from the Defendants contained cocaine. Lieutenant

Rick Kelly testified that he monitored the transaction using an audio “wire” and ve rified-8-

much of Offic er Jones’ testimony . Lie utenant Kelly

also te stified that he measured the distance between the house where thetransaction took place and a nearby school, both by using a me asuring wheel and by “stepp[ing] it off,” and he reported that the distance measured 351 fee t. Finally, James Cobletestified that in his capacity a s a confidential informant, he assisted Lie utenant Kelly in buying the cocaine, and h e sta ted that both Defendant James and Defendant Wade were involved in the transaction.

This is clearl y evidence

to support the jury’s finding s of guilt. The evidence supports the jury’s conclusion that Defendant James delivered the coca ine to the office r and its conclusion that Defendant

Wade s old t he coca ine to the of ficer t hrough Defend ant J ames. Alth ough Def endant Wade presented testimony by several witnesses, pri marily his g irlfrie nd, to esta blish his wh

ereabo uts at the time of the transaction, the jury appar ently discredited the te stimony of these witnesses in favor of te st im on y by t

h e underc over off

icers a nd confid ential inf ormant. We

may not disturb

these finding s by

the jury on appea l.

B. Proof of Another Crime Comm itted by Defendant James

Defendant

James argues that the trial c ourt erred by allowing evidence of another drug transaction to be admitted at trial. On direct examination, Defendant James testified that on February 12, 1999, a man whom he believed was Officer Jones went into the kitchen of the house on Morgan Street with the tenant of the house, Glen Howard. Defendant James denied being involved in any drug transaction that may ha ve taken place between

Jones and Howard that day , and he maintained that Defendant Wade was not present at the house on Fe bruary 12, 1999. O n cr oss-examin ati on, Defendant

James was asked whether he was “sure [he did not] have the dates of February 12th and February 17th confused,” and

he respo nded that

he did not. He also testified that he was not at the house on Morgan Street on Februar y 17, 1999.
Following this testimony, the trial court held a benc h conference outside the hearing of the ju ry, during which Defendant James’ attor ney ob jected to any further questionsfrom the S tate pertaining to a second d rug sale that took place on February 17, 1999. The trial judge then conducted

a jury-out hea

ring on the i ssue. At th

e heari ng, the

State re quested t

he oppor tunity to present rebuttal evidence to demonstrate that on Februa ry 17, 1999, Def

endan t Ja mes and Glen Howard were present at the same Morg an Street house when a second drug transaction took place, butthat Defendant Wade was not. The defense a rgued that evidence conce r ning the second drug transaction wa s irrele vant to the case being tried and that it was highly prejudicial to Defendant James. The State

countered that Defendant James had “opened the door” by a sserting that Defendant Wade was not present at the Morgan Street house and therefore that Wade was not involved in the drug sale that took place at the Morgan Street house on F ebruary 12, 1999. When Defendant James asserted that Defendant

Wade was not present on February 12 and that Glen Howard was present and involved in the Februa

ry 12 drug transac tion, Def

endant Jam

es’ testimony

appear ed to the State

to be an accurate description of events that occurred in the Morgan Stree t house on February

17, 1999, rather than a description of the events that occurred on February

12, 1999. Thus, in the State’s view,-9-

rebuttal evidence concerning the events of February

17, 1999 was highly pr

obative as to the accuracy of Defendant James’ assertion that Defendant Wade wa s not present on February 12, 1999.

At the co nclus ion o f the j ury-out h earing, the trial court ag reed wit h the State

and rule d, in part, as follows: Mr. Johnson, I’m going to allow the evidenc e to come in. What has happene d in this
case is that Mr. James has taken the witness stand and he has testified that Mr. Wade
was not there on February 12. He has testified that someone came - - or that Mr

. Cobleand Mr. Jones came and bought drugs on that date, but that they bought them from Mr. Howard and not from him, that he didn’t know what was happening. He
was asked on cross examination if it was possible that he may have been mistaken about the da te that he was talking about and if that might have bee n on February 17th

. If I recall his testimony correctly, he said, “No, that is not possible. I was not there then.” I

think the State is entitled to come in, under Rule 404(b), and introduce this evidence to show a complete story of the crime, refute his testimony , and the jury can take that or no t take it.

Tennessee Rule of Ev

idence 4 04(b) pr

ovides asfollows: “Evidence of oth er crime s, wrong s,
or acts is not

admissible

to prove t he char acter o f a pers on in orde

r to show a

ction in conform ity with the character trait. I

t may, however , be ad missi ble for other purposes.” Before evidence may

be admitted pursuant to Rule 404(b),

(1) [t]he court

upon req uest must hold a hearing outside the jury ’s presence; (2) [t]he court must determine that a material issue exists other than conduct conforming with a cha

racter trait and must upon reques t state on the record the material issue, the ruling, and the reasons for a dmitting the evidence; and (3) [t]he court

must exclude

the evide nce if itsprobative value is outweighed by the dang er of unfair prejudice. Tenn. R. Evid. 404(b)(1)-(3).

In this case, pursuant to Rule 404(b), the trial court held a hearing outside the jury’s presence to determine the admissibility of evidenc e concern in g Defendant James’ involvement in a drug transaction occurring at the Morga n Street house on February 17, 1999, five days a

fter the date of the offense for which both Defendant James and Def endant Wade were being tried. The tr ial court determinedthat a materia l issue existe d other th an condu ct confo rming wi th a char acter tr ait. According to the trial court’s ruling, this issue arose when Defenda ntJames testified to the jury that Defendant

Wade was not present in the Morgan Street hou se o n February 12, 1999, when a drug transaction occurred. Defendant James testified that Glen Howar d was present in the Morgan Street house on February

12, 1999. Defendant James also acknowledged that a dr ug transaction

probably occurred in thekitchen of the house on February 12, 1999. With this testimony, Defendant James presen ted to the jury a mater ial issue as to whether Defendant Wade was prese nt in the house on February 12, 1999, which was certainly a material issue in the State’s case against Def endant Wade.-10-

With regard to Tennessee Rule of Evide nce 404(b)( 3), the tr

ial cour t did not expli citly

state in the record that the probative value of the disputed evidenc e outweighed the dan ger of unf air prejudice to Defendant James. However, it is clear from a re ading of the entire record that such a finding was implicit in the ruling of the trial court admitting the disputed evidence. Ad di ti on al ly, the trial court ins tructed

the jury as follow s: If y ou find from the proof that the defendant has committed a crime other than that for which he is on trial, you may not consider such evidence to prove his disposition to commit

such a crime as that

on trial. The evidence may be considered by

you for the limited purpose of

determin ing whe ther it pr ovides a c omplete

story of the cr

ime, that is, such evidence may

be consider ed by you wh ere the prior crime and the present alleged crime are logically relate d or connect ed or are part of th e same transaction so that proof of the other tends or is necessary to prove the one charge or is necessary

for a complete account thereof.

In our vi ew, the trial court substantially complied with the requirements of Rule 404(b). When t he proffered evidence is subject to the proc edural requirements of Tennessee Rule of Evidence 404(b) and when the trial court ha s substant

ially complied withthose requirements, any decision as to whe

ther to a dmit evid en ce under Rule 404(b) will be reversed only for an abuse of discretion. State v. D uBose , 953 S.W.2d 649 , 652 (Tenn. 1997). Because the term “ discretion” essentia lly “denotes the absence

of a hard and fast rule,” State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999), we will re

verse a decision to admit evidence “only

when the ‘court applied an incorrect leg al standard, or r eached a decision which is aga inst logic or reasoning that caused an injustice to the party complaining .’” Id. (citi ng State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997)).

Alth ough we have concluded that the trial cour t did not commit error in admitting the evidence pertaining to the second drug transa ction, a thorough reviewof the entire record leads us to the conclusion that even if the admission of the evidence pertaining to the second drug transa ction
was error, such error did not “more probably than not affect

the judgment” under Tennessee Rules of Appellate Procedure 36(b). The Def end ant J ames admitted that he was present at 619 Morgan Street in Union City , Tennes see on F ebruar y 12 , 1999 at th

e time of the drug transaction described by Coble and Officer Jones. Both Coble and Officer Jones identified Defe ndant James as being

in the kitchen o f the hous e and taking part in the drug sale on February 12, 1999. Thus, even if error occurred, the error did not affirma tively appear to have af

fected the result of the tr

ial on the merits and therefore was harmless. See Tenn. R. Crim. P. 52(a).
C. Sentencing of Defendant James

Defen da ntJames next argues that the trial court erred by sentencing him to the maximum possible sentence within his range. When a criminal defe ndant challenges the length, ra nge, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence witha presumption that

the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presu mpti on, ho wever, “is co ndit ioned upon t he affi rmati ve sho wing in the record that the trial court considered the sentencing pr incipl es and al l relevant facts and-11-

circumstances.” State v. Ashby , 823 S.W.2d 16 6, 169 (Tenn. 1991). In the eve nt that the record fails to show such consideration, the review of the sentenc e is pu re ly de novo

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

In making its sent encing det ermination, the trial court, at the conclusion of the sentencing hearin g, determines the range of sentenc e and then determines the spec ific sent ence and the prop

riety of sentenc ing alte

rnative s by

consider ing (1) the evide

nce, if any , recei v ed at the trial and the sentencing hearing, (2) the presentenc e report, (3) the principles of sentenc ing and

argume nts as to sentenc ing alterna tives, (4) the nature and character istics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any stat ements the defendant wishes to make in the defendant' s behalf about sentencing, and (7) the potential for reha

bilita tion or treatment. Tenn. Cod e Ann. §§ 4 0-35-210 (a), (b ), -103( 5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumpt

ive sente nce for a Class A f

elony is the midpo int of the s entencing ran ge unle ss there are enhancement or mitigating factors present. Id. § 40-35-210(c). If there are enhancement
or miti gating factor s, th e court must start at the presumptive sentence, enhance the sentence as appropr iatefor the enhancement

factors, and then reduce the sentenc e in the range as appropriate for the mitigati ng fac tors. Id. § 40-35-2 10(e). T he weig ht to be g iven eac

h factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d a t 123. How ever, th

e sentence must

be adequately

supported by the record and comply

with the purposes and principles of the 1 989 Se ntencing Reform A ct. State v. Mo ss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific findings of fact on the r ecord supporting the sente

nce. Te nn. Co de Ann. § 40-35-209(c). The record should also include any enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court mus t state

its reasons on the record. The purpose of recording the court’s reasoning is to guara ntee the preparation of a proper r ecord f or appellate review. State v. Er

vin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Becau se the record in th is
case indicates that the trial court adequately considered the enhancement and mitigating factors as well as the underl

yin g fact s, our review is de novo with a pre sumption of correctness.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and proper weight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequately

supported by the record, then we may not modify the sentence

"even if we would have preferred a different resu lt." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

Defendant

James contests the l en gth of hi s sentenc e. The tr ial cour t sentenc ed him as a Range I standard offe

nder t o twenty-five y

ears incarceration. Although the de livery of more tha

n 0.5 grams of cocaine is ge nerally cla ssified a s a C lass B felony , see Tenn. Code Ann. § 39-17--12-

417(c)(1), the sale of such substance within 1,000 feet of a school is punishable one classification higher than its usual classification. See id. § 39-17 -432(b) . Thus , for p urpos es of s enten cing, Defendant

James’ cr ime is considered a Class A felony . The sentencing range for a Range I

standard offender convicted of a Class A felony is between f

ifteen and twenty -five ye ars. Id. § 40-35- 112(a)(5).

In sentenc ing Def

endant Jam

es, the trial court found no mitigating factors, but applied two enhancement

factors. The court first applied enhance ment factor (1), that “[t]he d efen dant has a previous history

of crimin al convictions or c riminal b ehavior

in addition

to those necessar

y to establish the appropriate range . . . .” Id. § 40-35-1 14(1). I n apply ing this f actor, t h e trial co urt stated, “The record reflects that Mr. James has twelve pr ior misdemeanor

convictions and three prior felony convictions. . . . Mr. James indeed has a very lengthy history

of crimina l conduct.” The record supports imposition of this enhancement factor.

The trial court also applied enhancement factor (13)( A), that “[t]he felony was committed while on . . . [b]ail, if the de fendant is ultimately convicted of such pr ior felony . . . .” Id. § 40-35- 114(13)(A). In apply

ing this factor, the court noted that Defend ant James w as char ged wit h the sale of cocaine, for which he was placed on bail on December 23, 1998, and that he was tried and found guilty of the cr ime on July 15, 1999. Because the c rime in this case took place on February 12, 1999, within that time period, the record supports imposition of this factor.

The trial court considered the appropriat e sent encing principles and all relevant fa cts and circumst ances. The court

conducted a thorou gh ana lys is of the mitigating

and enha ncement factor s. The court found no mitigati ng factors and applied appropriate enhancement factors in sentencing Defendant

James. The weight given to eac h factor was w ithin the trial court’s discretion. See Shelton , 854 S.W.2d at 123. For these reasons, we conclude that tri al court properly

sentenced Defendant James to twenty- five yea rs incarceration.

D. Defendant Wade’s Motion to Continue the Trial

Defendant

Wade contends that the trial court erred by failing to grant his motion for a continuance of trial. On December 10, 1999, counsel for De fendant Wade filed a motion for a continuance, in which she argued that there was inadequate time to prepare f or trial. In the motion, counsel stated that “a number of witnesses who would be supportive of Mr. Wade’s position are extremely difficult to locate . . . .” However, at a pretria l motion hearing, Defendant Wade subseque ntly informed the court that he did not wish to continue the case, stating, “I wanna [sic] to get it over with.” The trial court therefore denied th e motion a

nd order ed the pa rties toprocee d to trial as scheduled.

Tennessee Code Annotate d § 40-14- 105 provid es as fol lows: “Every

person accused of any crime or misdemeanor whatsoev er shall be entitled to fourteen (14) full day s (Sundays and leg al ho li da ys excluded) after arrest and the return of the indictment or presentment before being tried f or such offense.” The indictment in this case was filed on November 10, 1999, and an arrest warrant-13-

was issued on November

15, 1999. T

he trial t ook place on Dece mber 21, 1 999. Thus, under statute, Defendant Wade was allowed sufficient time to prepa re for trial.

We further not e that the gran t or denial of a continuance is a matter within the sound discretion of the trial court which will not be disturbed on appeal absent a clear showing of prejudice to the defendant. State v. Goodman , 643 S.W.2d 3 75, 378 (T enn. Crim. App. 1982). In this case, Defend ant Wade s pecific ally informed the court that he did not wish to continue his case, and the trial court denied the request for a continuance based on Defendant Wade’s wishe s. Moreover, altho ugh the requ est for a

continua nce was based on

counsel’ s need fo

r more tim

e to locate witnesses to testify on Defe

ndant Wade’s be half

, we note that several witnesses actually testified at trial for Defendant

Wade. Defendant Wade has thus failed to show that he was prejudiced by the trial court’s denial of a continuance. This issue is without merit.

E. Constitutionality of the Drug-Free School Zone Act

Fi na ll y, Defendant Wade challenges the constitutionality of the Drug-Free School Z

one Act
as applied to his cas e. As pre viously stated, th e Drug -Free

School Z one Act p rovides, in pertinent part, that when the delivery or s ale of a co ntrolled s ubstance takes pla ce on the ground s or within 1,000 fe et of the

ground s of a sch ool, the of fender “shall be punished one (1) classification higher than” he or she would normally be punished for such a violation. Tenn. Code Ann. § 39-17-432(b). This Court has p

reviousl y up held the c onstitution ality

of the Act. See State v. Jenkins , 15 S.W.3d 914 (Tenn. Crim. App. 1999). H aving reviewed the record, we conc lude that there are no circumstances in this case that would require us to reconsider the decision of this Court in State v. Jenkins

. Id.

Defendant

Wade first argues that he had no rig ht of ownership in the proper ty where the violation in this case took

place. However, the langua ge of the Drug-Free School Z

one Act does not require that a violator of the Act have a possessory interest in the property whe

re the drug transaction takes place. Thus, Defendant Wade’s argument that he did not own the house where the transaction in this case took place has no merit.

Defendant

Wade also

complains that “[t]he Drug Task Force chose the site . . . and set up a situation of fostering the dangerous a ctivity of selling drug s near anelementary school.” We find
no evidence in the record that the officers involved in the undercover opera tion that resulted in the Defend ants’ arrests acted

improperly in conducting the operation. No evidence was offer ed at trial to show that the officers “set u p” a si tuati on whe reby drug de alers would be enco uraged t o sell drugs in close proximity to a school. Nor was evidenc e offered to show that the officers in any

way lured Defendant

Wade to the location where the transaction took place. The officers and the conf idential informant testifie d that af

ter driving to several different locations, Officer Jones and the confidential informant encountered Defendant James , who, of his o wn volition, then summoned Defendant Wade to take part in the drug deal. This testimony was uncontroverted at trial. We conclude that this issue is without me

rit.-14-

Accordingly , we AFFI

RM the judgments of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE