# FILED October 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9806- CR-00219 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. PHYLLI S H. MIL LER, STEVEN MARSHALL ) JUDGE DEADRIC K, ) ) Appe llant. ) (Facili tation-Sal e of Cocaine)

ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF SULLIVAN COUNTY
FOR THE APPELLANT: FOR THE APPELLEE : RICHARD A. TATE PAUL G. SUM MERS Assistant Public Defender Attorney Generaland Reporter P.O. Box 839 Blountvi lle, TN 37617 MARVIN S. BLAIR, JR. Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 GREELEY W ELLS Distri ct Attor ney General J. LEWIS COMBS Assistant Distri ct Attor ney General Blountvi lle, TN 37617

OPINION FILED ________________________ AFFIRMED DAVI D H. WELL ES, J UDGE-2- 

# OPINION

The Sullivan C ounty Grand Ju ry indicte d the D efend ant, St even M arsha ll Deadrick, for the sale or delivery of 0.5 o r m ore grams of cocaine and f or cons piracy to sell or deliver 0.5 or more grams of cocaine. The Defendant and his co-defendant, James ArthurCarnes, were t ried toget her, and a Sull ivan Coun ty jury found the Defendant gui lty of the lesser

included of

fense of facilitation of

the sale of

over one half

a gram of cocaine. Af ter consi dering the Defe ndan t’s criminal record and other pert inent fac tors, t he trialcourt sentenced him as a Ra nge III p e rsistent offender to thirteen years incar ceration and fined him $2,000 .00. Pu rsuant t o Rule 3 of the Rul es of Appell ate Procedure, the Defendant now appeals both his c onvicti on a nd his sentence. We affirm the judgm ent of the tria l court.

The Defendant’s pr

esent convic

tion arises f rom events which o ccurred in early September 1996. At that time, Jerry Ma chen, Jr., a recoverin g drug a ddict,
vo lunteered to work for the Kingsport Police Department’s Vice and Narcotics Divisi on and the Sullivan County Drug TaskForce as a con fidentia l inform ant in exchange for compensati on. At the t rial , Machen testi fied t hat he had k nown both Defendants for

ten to fifteen year

s. Machen, who sol d and instal led carpet for his fath er’s busin ess, state d that in ea rly Septem ber, he d iscusse d with Defen dant C arnes th e excha nge of ca rpet and installation fo r cocaine
.

Machen met with off icers on September 1 0, 1996 to set up a co ntroll ed buy with Defendant Carnes. Machen testifi ed that prior to his meeting with Carnes, officers thoroughly sea rched both h is pers on and h is van b efore o utfitting h im-3-

with a body w ire. He located Defendant Carnes at an apart ment inside Carnes’ aunt’s home, which Carnes was remodeling
. Machen reported t hat Defendant Deadrick was also presen t and pa tted Mac hen do wn befo re he co nversed with Carnes. Machen testi fied that he proposed givi ng Carnes $200.00 in exchange forfive f ifty-dollar

bags of cocaine. He reported that Carnes refu sed, stating, “two of anyone else’s m ake one of [mine] ,” and agreed to provide four bags for $200.00. Machen paid Carnes $203.00—$200.00 f or the cocaine and $3.00for
some pick les w hich Carne s als o sol d. Defendant Carne s and Defen dant Deadrick then left

the apartment for

fifteen to twe nty minu tes, repo rtedly to unload trash col lected du ring the remo deling . Mach en sta ted tha t upon their return, Deadrick again patted him down, and Carnesthen gave him four bags of cocaine. Before le aving, Ma chen to ld Carne s that he w ould m eet w it h him the following day to negotiate carpeting t he remodeled apartments.

Machen testif ied that after l eaving the apar tment, he pl aced the bags into the po cket of his shir t; later , immediately after he got back into his van, h e wrapped the ba gs in a napk in to preve nt dam age to them and placed them back into his pocket. When he arrivedback at the prearr anged locati on, he deli vered the cocaine to law enforcement personnel. Off icers s earched him and the van
a second time to as certain whet her he was in possess ion of any ot her ill egal substances. They f

ound no other drugs

in the van o r on Ma chen. The officers then de-wired Machen and hi s van and took a statement from him ab out t he transacti on.

On the foll owing day, September 11, 1996, Machen agai n met with l aw enforcementpersonnel to discuss a second drug transacti on. On this occasi on,-4-

Machen was to trade carpeta nd installation for coca ine. The officers g ave Machen money for his p urchase, and he proceeded to a carpet outlet to purchase the carpet. Machen t hen returned to the offi cers carry ing the carpet i n his van, submitted to a search of his pers on and his va n, and w aited for the officers to wire both him an d his vehic le before procee ding to m eet De fendan t Carne s.

Machen went fir

st to the home of Defendant Carnes’aunt, Mary J ane Carnes, who met him at the door and informed hi m that Defendant Carnes was at a nearby hair

salon. Machen found Car nes a nd Deadrick worki ng on a car outside the salon. Upon Machen’s arri val, Machen and Ca rnes engaged in a heated discussion about the pri ce of the carpet. Accordi ng to Machen, Machen suggested that he receive “six fift ies,” whi ch meant six f ifty-dollar bags of cocaine, fo r the carpet, but Carnes thought that thi s idea was “ri diculous. ” Machen maintained t hat the two s ettled on a trade of “four fift ies” for

the carpet. Carnes instructed Mache n to deliver th e carpe t to his aunt’ s home, and Machen testi fied thathe did so. With the help of Mary Jane Carnes’ son, Machen trans ported the carpet u pstairs to th e apartm ents an d then re turned to the hair sa lon.

Machen testif ied that

when he arrived, Defendant Carnes and Defendant Deadrick were stil l there working on the car parked in f ront of t he salon. Machen stated that Carnes asked him to go insi de and wait. While i nside, Machen pi cked up the pickles that Carn es had promis ed him the previo us night. Shortl y thereafter, Defendant Carnes and Defendant Deadrick enter

ed the salon, and Deadrick pull ed fourfifty-dollar bag s of coca ine out of h is pocke t. Accord ing to Machen, Deadrick asked, “it is four, isn’t it?” to which Carne s respo nded, “ye ah.” Defend ant D eadrick a ttempte d to han d the ba gs to Ca rnes, wh o indicate d to-5-

Deadrick to instead hand them to Machen. Machen stated that he took the bags from Dead rick, put the m into his shirt pock et, and afte r a short co nversatio n with another man present at t he salon, departed and headed to a predetermined locati on to mee t with police. At the locat ion, he tu rned over t he cocaine and the picklesto Offi cer David Quil len and su bmitted to a search of hi s vehicl e and person.

On cross-examinat ion, Machen stated that hewas a recoveri ng addict and admitted that he had a buse d coc aine a nd alc ohol fo r sever al years. He a lso testif ied that he had occ a sionall y used marijuana . He conceded that he used cocaine in September 1996 and several t imes afterwar ds. He acknowledged t hat his use of drugs di d affect h is memory to a cer tain extent. Machen denied using cocaine while worki ng with po lice in this case, but he did admit that he had used cocaine as recentl y as ten to t wenty days before the trial. In a ddition , Machen stated that he had b een convicted once in 198 1 for p o ssession of cocaine. Machen stated that he was p aid ap proxim ately $200 .00 pe r day fo r his work with the police on Sep tembe r 10 and 11 of 199 6.

At trial, the State introduced t he tapes made fr om Ma chen’s bod y wire recorded on September 10 and 11. The tapes were of ten unclear or inaudibl e. They contained no overt references to t he sale of cocai ne, although on the tape from Septem ber 11, Defe ndant Ca rnes stated at on e point, “Going [sic] in the re and get me some damn baking s oda, or . . . go out here , and ge t s ome hem p bullshit, and split

the bag.” The State also presente d the jury w ith transcrip ts created from the tapes to aid t he jury in its comprehensi on of the evi dence on the tapes.-6- Officer David Street

of the Ki ngsport Poli ce Department int roduced photographs at tri al of Machen, Defendan t Ca rnes, Defendant Deadrick, and Defendant Carnes’ tr uck which were taken on September 10 and 11. He testifi ed thathe had worked survei llance bot h days, vi ewing the transacti ons between the Defen dants and Machen fro m a near by t ower. He stated that for his surveill ance he was supplied with binocular s, a camera, and two police radios , twochan nels of which maintained a connecti on with Mac hen’s bo dy wire. Photographs fr om September 10 depicting Defendant Carnes’ truck, in which Officer Street testifi ed th at Carnes and Deadrick wer e riding, and photographs f rom Septembe r 1 1 showing a ll thr

ee parties wer

e identi fied and i ntroduced int o evidence. Street also testif ied that

on September 11, he suppl ied Machen with money f or the carpetand too k photo graphs of th e carpet befor e Machen met with th e Defen dants to nego tiate abou t the carpe t. Street testifi ed that al though he never actua lly saw ill egal acti vity f rom his vant age po int, he did hear “deal s being made.”

Offic er D avid Quil len of theKingsport Pol ice Department’ s Vice and Narcotics Divisi on testif ied that h e worked survei llance on September 10 and 11 and met with Mache n fo llowing Machen’s contacts with Defendant Carnes and Defendant Dea drick. He stated that he collected the cocaine f rom both drug deals, photographed the packets, and sec ured them in a l ocked fil ing cabinet at the Vice a nd Na rcotics office u ntil he delivere d them to the King sport City Police Department the following Mond ay. He stated that he also thor

oughly searched Machen and took statements from him after collec ting the evidence.-7- Corporal Bill Farmer, the evi dence custodian at the Kingsport Poli ce Depa rtment, testif ied that h e received t he cocaine parcels f rom Officer Quillen. He stated that he logge d the ite ms in on an evid ence sheet and ret urned them to Quillen i n early October foranal ysi s. Hestated that he also re ceived the au dio tapes from the drug deals, and he noted that the tapes were checked out several times before the trial.

Richard Joyce o f the Drug Enforcement Administrati on testi fied that he received possession of the coc aine packets f rom Officer Qui llen on October 2, 1996 forthe purpose of analysis . He stated that upon receipt of t he packets, he processed the m, put them in an envelope, and sent them to the DEA laboratory in Miami. Aruna Kumar, a forensic chemist at

t he DE A labo ratory in Miam i, testif ied that she received and analyzed t he contents of the packets. She stated thateach pac ket tested pos itive for cocain e. The purity of some packets tested at85%, whi le th atofot her s wa s f oun d t o be84%.

Oth er law en forcem ent pe rsonn el involve d in the transa ctio ns o n September 10 and 11 also testifi ed at tri al and outline d their involvement in the
case. Agent Brian Bi shop of the Ki ngspor t Police Depar tment testified that

on September 10, he m et with M ache n, sea rched him, a nd ou tfitted him with a wire transmitter befor e his meeting wi th the Defendant s. He reported that Machen was lu cid an d did not appear to be under the i nfluence of any illegal substance during their meetings. Bi shop then lis tened to the tra nsm ission s from Mach en’s body wire duri ng the transac tion. He testifi ed that when Machen ret urned, Machen gave him the baggi es of cocaine, whi ch he immediately turned over to Officer Quillen. Bishop stated that he searched Machen a second time af ter the-8-

transacti on. He als o testifie d that o n Sep temb er 11, h e me t with M ache n, aga in outfit ted him with a body t ransmitter , and then l istened to the transm ission while Machen met with theDefendants. Later, when Machen returned, Bishop removed his bo dy wire . His tes timon y conc ernin g the cont ents of t he transmissi ons from Machen ’s b ody wires gener ally matched the audio tapes introduced at tri al and Machen’s own testimony regar ding the event

s of September 10 and 11.

Officer Mike T aylor of t h e Second JudicialDrug Task Force test ified t hat
on September 10 and 11, he sear ched Machen’s van, rod e w ith Agent Bi shop, and monitored Mach en’s van and the tr ansactions. He stated that he and Bishop
were among other law enforce ment p ersonn el who follo wed M achen to and from their secured location. Taylor stated that despi te his t horough search of the van, he found no contr

aband inside t he vehicle.
Stanley Hodgesof the Second Judi cial Dist rict DrugTask Force testified thaton September 10, he recorded the tr ansaction between M achen and the Defendants. On September 11, he was a ssign ed to lis ten to th e aud io tape of the transacti on as it was bei ng made and to act if an emergency arose. Otherwise, he was to keep Machen under constant s urve il lance dur ing t he tr ansac tio n. He testif ied that on September 11, Machen was out of his dire ct view f or appro ximate ly fif t een to tw enty min utes at on e point an d appro ximately th irty minutes at another point during his

meeting wit h th e Defenda nts . Fr ank LaPo ma of th e Second Ju dicial D istrict Ta sk Fo rce tes tified tha t he rec orded the au dio tape of the trans action on Septem ber 11 a nd took note s while monitoring the recording.-9- Defendant Carnes testi fied in h is o wn defense. He deni ed ever sell ing cocaine and c laime d that h is income came from social securit y disabili ty benefits, the periodic re pair and resale of re posse ssed ve hicles, a n d the sale of pickl es. He explained t hat he regularly bought j ars of homemade pickl es from a fri end at
a local farmer’s market and resold t hem f or extra i ncome. He claimed that he had sometimes paid “ar ound twenty- nine thousand dol lars ($29, 000.00) a year taxes” on the incom e he m ade fro m the sale of pickles. He insisted that the tapes introduced at tri al contai ned references t o the sale of

pickles, rather t han the sa le of drugs. Carn es claim ed tha t Mach en ha d app roach ed him on September 10, asking for an “ei ght ball of cocaine, ” to which heresponde d, “I don’t talk tha t, don’t talk that to me,” but maintained that no exchanges w ere made on September 10. He reported t hat his aunt, Mary Jane Carnes, paid Machen cash for the carp et and ins tallation on Septem ber 11.

On cross-examinat ion Carnes admitted that he kept no record s of his pickle sales and did n ot pay taxes. He explai ned thatbecause Mr. Fall in, theman from whom he bo ught h is pic kles, p aid sales tax on the pic kles, he was not required to pay anything furthe r. He also admitted that in add ition to his truc k, he owned a BMW which he was “hiding” in a garage. He further admitted to drivi ng a Jaguar which he had r epaired, but

he claimed that

the veh icle belon ged to his sister, who allow ed him to drive it. He conceded that he someti mes drove other vehicles as well, includin g a Co rvette, a Ford Explorer , a Plymouth convertibl e, and a Mazda Miata, whi ch he had repaired but which he cl aimed bel onge d to otherpeople. Furt hermore, he admitted that someti mes he d rove a Harley Davidson motorcycle, which he stated belonged to the owne r of a cu stom repair shop. However, he did admit that the licen se tags on the motorcycle w ere-10-

register ed to his aun t, M ary J ane Carnes. Final ly, Defendan t Carnes acknowledged having rented sever al vehicl es from diff

erent car r

ental agenci es on several di fferent

occasions. He cl aimed he had used the veh icles to transport friends to b asketb all game s in other c ities and fo r other pe rsonal pu rposes . Mary Jane Carnes, Defendant Carnes’ aunt , also testifi ed for the defense. She testif ied tha t her nephew, Defendant Carnes, Defendant Deadrick, and others had helped her install carpe t in apartm ents in he r home
. She stated that Machen instal led some carpeti ng on September 5, 1996, for which she p aid him $200.00 in cash. She stated that a “weekor so” la ter, Ma chen return ed to in stall
more carpet. On t his occasion, she claimed t ha t she again pai d him $200.00. W hile Machen agreed through his testimony t hat Mary Jane Carnes had p aid him forcarpet and i ns tallatio n on S eptem ber 5, 1 996, h e den ied tha t she p aid him anything therea fter, recalli ng that he saw her only bri efly on September 10 and not at all on September 11. Ms. Carn es denied an y knowledge of t he Harley Davidson motorcycle which her nephew had acknowledged on cross exam ination.

Defendant Deadrick did n ot testify at t he trial . The transcript of t he September 11 tape incl udes only one statement b y Defendant Deadrick. Deadrick is quoted stating, “It was four, wadn’t [sic]it,” to which Carnes responds “Steve, ye ah, four.”-11- I. AUDI O TAPES The Defendant first

argues that the trial co urt erred b y allowing tra nscripts of the audio tapes made on September 10 and 11 to be admit ted into evi dence. He states, “The audio tape . . . would be the best evi dence; that a transcri pt was what a third par

ty thought

he or she heard and w ould b e mis leadin g to a ju ry in this cause. He also contends t hat “the tape was inaudibl e at times and t hat the prejudicia l value [of the tape] outw eighed the prob ative value .”

The Tenness ee Su prem e Court has held t hat “‘tape recordings and compared transc ripts are adm issible and may be presented i n evidence by any witness who was present dur ing thei r recordi ng or who monitored t he conversations, if he wasso situated and circumstanced that he was i n a positi on to identify the d eclaran t with certaint y, and provi ded his test imony in whole, or in part, comports wit h other rul es of evidence.’” State v. Cameron , 909 S.W.2d 836, 850 (Tenn. Crim. App. 1995) (cit ing State v. Jones , 598 S.W.2d 209, 223 (Tenn. 1980)).

From a reading of the record, it appears that c ounsel for the defense initially objected to the a dmission o f the tapes and later r econ sidere d their objection s. The record also establis hes the followi ng: Machen, the confidenti al informa nt, from whose body wir e the audio tapeswere recorded, testif ied that h e had listened to the tape s after t he transacti ons and had reviewed the transcripts. He maintained t hat he was also f amiliar with the voi ces on the tapes. He stated that to t he best of hi s knowledge, t he transcri pt and tapes wereaccurate.-12- Stanley Hodges of the Second Judicial Distri ct Drug Task F orce, who introduced the September 10 tape into evidence, testifi ed that he monitored the conversati ons and recordingon Se ptem ber 10 , 1996 . He sta ted tha t imm ediate ly afterw ards, h e ma rked th e tape with his initials and de livered it to Office r David Q uillen , wh o was in charge of the invest igation. He concluded that the tape introduced at tri al was the tape he recorded on September 10 andthat the t ape accurately reco rded the even ts that he had m onitored on tha t day.

Officer David Quill en, who intr oduced the September 11 tape on which the Defe ndan t’s voice is

heard, test ified t hat he fol lowed Machen on September 10 and 11 an d m onitored al l transmis sions fro m Machen’s body wire during the transac tions. He stated that he had since listened a second time to both tapes and reported t hat both tapes were accurate andconveyed what he had hea rd during the ini tial t ransmissions. He also test ified that wh en he collected the September 11 tape, he initial ed it for i dentificati on purposes.

In additio n, Frank LaPoma of the SecondJudicialDistri ct Drug Task Force testif ied that he recorded the September 11 audi o tape and had li stened to t he tape during its re cording
. He stated th at he was also ass igned to make notes of the tape du ring the tran smissio ns, which he use d at trial as a m emory aid to recall the transac

tion. When init ially

presented wit h the tape i n court, he stated thathe w as unsure from a vi sual inspect ion whether it was the ta pe he had recorded on September 11, 1996. However, the t rial cour t allowed him to revi ew the tape outsi de the presence of the jury, and afterw ards, h e state d that it w as in fact the t

ape which he had rec orded a nd that it co ntained an accu rate portrayal of t he Se pte mber

11 e ven ts as he had hear d th em.-13- Before a llowing the jury to hear the Septem ber 10 tape, the trial court instructed them a s follows: I will give the Jury the following instruc tion. This exh ibit, t he tra nscript

. . . purports to be a transcr ipt of ex hibit nu mber 24 t ha t we are about to p lay for you. The tape recording, not the tr anscript i s the evidence. The transcri pt is gi ven to you to as sist you i n lis tening to the taperecording, and foll owing the taperecor ding
. The transc ript is diffic ult— the tap e is difficul t to disti nguish at times. At ti mes, the re i s ou tsi de no ise . Yo u sh oul d ke ep i n mi nd tha t the tape is the evi dence, and that only the st

atements, admissi ons or declarati ons of a def enda nt may be consideredon the questi on of guilt or innocence . If y ou find th at there i s something in t he transcri pt th a t you do not hear on the tape re cording, or in other words, if ther e are discre pancies between t he tape recordi ng and the transcri pt, you ar

e to disreg ard what is o n the transcript because the transcript is

not evidence. The tape recordi ng is the ev idence.
Based upon th e forego ing, we co nclude that the trial co urt com mitt ed no error by allowi ng introduct ion of the tapes and trans cripts. The voices on the tapes were ide ntified; a number of differ ent witness es stated t hat both the tapes and transcripts were accurate por trayal s of the event

s of September 10 and 11; and the tri al court du ly inst ructed the jury thatif they

noted discr

epancies between the tapes and the t ranscript s, they must disregard t he transcri pts and cons ide r only the tapes asevidence. We find that wit ness testi mony regarding t he tapes and transcripts and the instruction s given to the jury ensured that both the tapes and transcripts were su fficiently reliable fo r introductio n into eviden ce. Th is issue is therefore without m erit.

II. SUFFICI ENCY OF THE EVI DENCE The Defe ndan t next co ntend s that th e evid ence pre sented at t rial was insuffi cientas a matter of law to suppor

t the Defe ndan t’s convicti on. Tennessee Code Annotated § 39-11-403 defines t he crime of whi ch the D efenda nt was convicted:-14- A perso n is crimin ally respon sible for the facilitation of a fe lony if, knowing that an other in tends to com mit a specifi c felony, but without the intent r

equired for

criminal responsibi lity und er 39- 11-402(2), the person knowingly fu rnishes substantial assistance i n the comm ission of a felony. Tenn. Code Ann. § 3 9-11-40 3(a). T he Defen dant arg ues tha t “[t]he State presented no evidence t hat the defend ant pr esented any assistance let al one substanti al assistance i n any criminalbeh avior a ctivity. . . . Th e reco rd is void thatthe de fenda nt kne w his co-de fenda nt, Ca rnes, in tende d to co mm it a felony
or that he kn owingly fu rnished substa ntial assistance i n the commission of the felony.” In his brief, the Defendant implies that t he evidence used to convictthe Defen dant wa s purely circ umsta ntial.

Tennessee Rule of

Appell ate Pr

o cedure 13(e) pr

escribes t hat “[f

]indings of guilt in criminal actions wh ether by the trial court or jury shall beset aside i f the evidence is insuf

ficien t to support

the findi ngs by the trier of fact of guilt

beyond
a r ea sonable do ubt.” In addition, beca use conviction b y a trier of fact destroys the presumption of innocence and imposes a presumption of guilt, a co nvi cted criminal defend ant bea rs the bu rden of s howing th at th e evidence was insufficient. McBe e v. State , 372 S.W.2d 173, 176 (Tenn . 1963); see also State
v. Evans , 838 S.W.2d 185, 191 (Tenn. 19 92) (cit ing State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1976), and State v . Brown , 551 S.W.2d 329, 331 (Ten n. 1977)); State v. Tug gle , 639 S.W.2d 913, 91 4 (Ten n. 1982 ); Holt v. State , 357 S.W.2d 57, 61 (Ten n. 1962).

In its review of th e eviden ce, an ap pellate court must af ford the State “the strongest legitimate vi ew of the evidence as we ll as all reas onable and legitim ate i nfer ences that may be d rawn therefrom .” Tug gle , 639 S.W.2d at 914 (ci ting-15-

State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978)). The court may not “ reweigh or re-evalu ate the ev idence ” in the reco rd below
. Evans , 838 S .W.2d at 191 (citi ng Cabbage , 571 S.W .2d at 836). Likew ise, should the review ing court find particul ar confli cts in t he trialtestimony, the court must res olve them in favor of the jury ve rdict or trial cou rt judgm ent. Tug gle , 639 S.W.2d at 914.

We only examine suf ficien cy relat ing to theSeptember 11th tr ansaction,
as the trial court dismissed at t he conclusion of the state’s proof the count re lating to the Se ptemb er 10th tra nsaction
. Contrary to the Defend ant’s assertions, the State did pre sent di rect evidence that Machen obtai ned cocaine fr om the Defendants and thatDefendant De a drickpartici pated in t his trans action. Machen testif ied that Defendant Deadrick was present on September 11, and offi cers who monitore d the transacti on betwee n the De fendan ts and Ma chen ve rified this repo rt. In addit ion, photographs of the Defend ants and M achen take n on Sep tember 11 were introduced in to ev idenc e. Mac hen a lso tes tified tha t the D efend ant ac tually deliver ed packe ts of coca ine to him on September 11. Moreover, on the au dio tape of the September 11 t ransaction, the Defendant i s heard to ask hi s codefend ant, “It was four, w adn’t [ si c] it?” Ma chen explain ed tha t by ma king th is statem ent, the De fenda nt was verifying how m any pa ckets of coc aine h e sho uld give Machen. Finally, the packet s of cocaine w e re collec ted by off icers and analyzed for conten t. Viewing th e eviden ce pres ented a t trial in the light most favora ble to the State, we conclude that the State presented suffi cient evidence from which a jury co uld have determ ined th e Defe ndan t’s guilt. W e there fore will not disturb the jury’s findin g on ap peal.-16- II I. SENTENCI NG Finally, the Defend ant argues tha t the trial court erred b y sente ncing him
as a Range III persistent offender to thi rteen years inca r ceration. Although he states that the trial court erre d by applyi ng “certai n enhancement factor s,” he providesno arg ument in supp ort

of t his poi nt. Rat her , i t se ems that he prima rily disputesthe trial c ourt’s d ecisio n not to apply mitigati ng factor (4), which states, “[t] he defendant pl ayed a minor role i n the commission of the offens e.” Tenn. Code A nn. §40-35 -113(4).

When an accused chall enges the lengt h, range, o r mann er of service of a sentence, this Court ha s a duty to c onduc t a de novo review of th e sente nce with
a presumption t hat the determin ations mad e by the trial court are correct . Tenn. Code Ann. § 40-3 5-401 (d). Th is pres ump tion is “conditioned up on the affirmative showing in the record t hat the trial court consi dered the sente ncing pri nciples and all relevant facts and circumstanc es.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 19 91).

W hen conducting a de novo review of a sentence, t his C ourt mus t consider: (a) theevidence, if any, r eceived at t he trialand sentencing hearing; (b) the presentence rep ort; ( c) the pri nciples of sentencing and ar

guments as t o sentencing alternativ

es; (d) the nature and characterist ics of the cri minal conduct involved; (e) any statutory mitigati ng or enhancement factors; (f) any statement made by the defendant regarding sentencing; and ( g) the p o tentialor lack of potentialfor rehab ilitation or treatm ent. State v. Thomas , 755 S.W.2d 838, 844 (Tenn . Crim. A pp. 198 8); Ten n. Cod e Ann. §§ 40-35-102, - 103, -210.-17- If our revi ew reflect

s that thetrialcourt fol lowed the statutory sentencing procedu re, tha t the court imposed a lawfulsentence after having given due conside rati o n and proper weight to the fac

tors and pri nciples set out under the sentencing law, and th at the trial court’s fi ndings of factare adequately supported by therecord , t hen we ma y not modify the sen tence even if we would have preferreda different re sult. State v. Fletcher , 805 S.W.2d 785, 789 (Ten n. C ri m. App. 19 91).

Our review of

the record f rom the sente ncing hearin g reve als that the t rial court carefully considered t he evidence pres ente d at the trial and sentencing hearing, the Defendant’ s history , the enhancement and mit igat i ng factors, and otherrelevant

factors and sentencing pri nciples. Therefore, we conclude that our review of the Defendant’s sentence is de novo with a pres umptio n th at t he determinati ons made by the trial co ur t are corre ct. See Ashby , 823 S.W.2d at 169.

In sente ncing the De fenda nt, the tria l court c onsid ered th e Def enda nt’s criminal record. He had previously been convicted of t wo Class B felonies , one Class C felony, and three Class D felonies. The trialcourt appl ied the fo llowing enhan ceme nt factors:

(1) The defendant has a pr eviou s history

of crimi nal co nvicti ons or criminal behavior in addition to those necessa ry t o establi sh the appropri ate range;

. . . (8) The defendant has a previous

history of unwillingn ess to com ply with the condi tions of a sentence inv

olving r elease in t he comm unity;

. . . (13) The felo ny was com mitted while on any of the f ollowing forms of releasestat us if such release i s from a prior felony convicti on:-18- . . . (B) Paro le . . . . Tenn. Code Ann. § 40-35 -114( 1), (8), (1 3)(B). T he co urt app lied the followin g mitigati ng factor: “The defendant’ s criminal conductneithe r caused nor threatened s erious bodily injury.” Ten n. Code A nn. 4-35-113 (1).

In concluding tha t mitigating factor (4) did no t apply in this case , the trial judge stated, You played more o f, a lesser role tha n Mr. C arnes , but I find that it wa s not a minor role consideri ng the testimony of your act ions th e previousday, Jun e 10, 19 96 [sic], . . . when Mr. Mache n went there to purchase cocai ne and testi fied that you patted hi m down. So I think

you knew very well what went on. You went, as I recall, with Mr. Carnes both t imes when he left and went to . . . the buildi ng where the Jazz Salon was l ocated and then came back and sol d the dru gs. The fir st time, as I recal l, you di d not go in t he buildi ng, even though Mr. Carnes stated t ha t you did in his testimony. But, ther

e’s no test imony by the offic ers tha t you we nt in the buil ding. So, it was just not

as great a rol e as, as Mr. Carnes, but it was close.

We find no err

or on the pa rt of the tr ial cou rt in sentencing t he Defendant to thirteen years incar ceration. The trialcourt’s finding that theDefendant played
more than a minor

role in the off

ense is adequatel y supported by the record, and the trial judge en unciate d he r reasoning f or imposing t he sentence which t he Defendant recei ved. We therefore af firm the sen tence imposed.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE-19-

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOE G. RILE Y, J UDGE