IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

February 27, 2018 Session

STATE OF TENNESSEE v. RICHMOND LEBRON MADDEN, SR.

Appeal from the Circuit Court for Rhea County

No. 2014-CR-211 Thomas W. Graham, Judge

No. E2017-01281-CCA-R3-CD

The Defendant, Richmond Lebron Madden, Sr., was convicted by a jury of one count of 

possession of 0.5 grams or more of methamphetamine with intent to sell or deliver. On 

appeal, the Defendant contends that (1) the evidence presented at trial was insufficient to 

support his conviction; (2) the trial court erred in allowing a witness to testify about the 

Defendant’s relationship with his co-defendant and his living arrangements; (3) the trial 

court erred in denying his motion to suppress, which challenged the legality of the stop 

resulting in the Defendant’s arrest; and (4) the trial court abused its discretion by denying 

the Defendant an alternative sentence and sentencing him to nine years and six months of 

incarceration.

1

 Following our review, the judgment of the trial court is affirmed and 

remanded for entry of a corrected judgment. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed; 

Case Remanded for Entry of Corrected Judgment

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

WITT, JR., and ROBERT H. MONTGOMERY, JR.,JJ., joined.

Thomas K. Austin (on appeal), Dunlap, Tennessee; Larry Roddy (at trial), Dayton, 

Tennessee; and Philip Duval (at sentencing), Chattanooga, Tennessee, for the appellant, 

Richard Lebron Madden, Sr.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

 

1

For clarity and ease of discussion, we have reordered the issues as they are set forth in the Defendant’s 

brief.

06/05/2018
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FACTUAL BACKGROUND

On December 1, 2014, the Rhea County grand jury indicted the Defendant with 

one count of possession of 0.5 grams or more of methamphetamine with intent to sell or 

deliver. See Tenn. Code Ann. §§ 39-17-417, -434. Prior to trial, the Defendant filed a 

motion to suppress evidence obtained during the traffic stop, and a hearing was held on 

February 5, 2016. 

I. Suppression Hearing

Rhea County Sheriff’s Department Officer Charlie Jenkins testified that he was an 

investigator and that he was assigned to drug-related cases. Officer Jenkins said that he 

was working in this capacity on August 25, 2014, and that a confidential informant gave 

him information regarding the Defendant and a potential drug deal on that date. Officer 

Jenkins testified that on “several occasions” over the prior two years, this informant had 

supplied him with information regarding drug activity. Officer Jenkins said that the 

information he received from this informant was always reliable and that it had led to 

arrests and convictions. 

Officer Jenkins testified that on August 25, 2016, the informant called him and 

told him that a woman named Sherry Ewton would be driving a “blue four-door car with 

a dent in the front fender” and that her boyfriend, a black male, would be a passenger in 

the vehicle. Office Jenkins said that the informant also told him that the two “had been 

selling meth . . . at the Bi-Lo . . . [and] a gas station adjacent to the Bi-Lo.” Officer 

Jenkins explained that the informant indicated “that they had actually seen what was 

going on.” 

Officer Jenkins testified that upon receiving this information, he immediately 

drove to the Bi-Lo parking lot. He explained that as he arrived, he noticed the described 

vehicle at the Jiffy parking lot, which was located next to the Bi-Lo parking lot. Officer 

Jenkins described the vehicle he saw as a “blue four-door Camry with a dent in the front 

fender” and said that this matched the informant’s description. When asked what he did 

after observing the vehicle, Officer Jenkins said,

I noticed it, again, at the Jiffy parking lot next door. The vehicle went up to 

the stop sign, turned south on Market Street and then turned into the Bi-Lo

parking lot. It went down three aisles of the parking lot, passing up empty 

spots. As the vehicle turned to come back down, then I blocked it in front 

of it. 

Officer Jenkins said that after stopping the vehicle, he got out and walked around to the 
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driver’s side of the vehicle. He explained that Ms. Ewton was the driver and that the 

Defendant was seated in the front passenger seat. Officer Jenkins testified that he “could 

plainly see meth right there in [Ms. Ewton’s] lap” and that when he opened the car door 

he found drugs “right there in the door jam of the vehicle.” Officer Jenkins explained 

that the substance he observed was a crystal substance and that he suspected it was meth. 

Officer Jenkins stated that he had not observed any traffic violation and that “the purpose 

of the stop was . . . they were there to sell methamphetamines and I was there to intercept 

it.” 

At the conclusion of the hearing, the trial court denied the Defendant’s motion to 

suppress, and a jury trial began on February 16, 2016.

II. Jury Trial

At trial, Officer Jenkins explained that he had previously participated in arresting 

individuals who were in the process of buying and selling drugs. Officer Jenkins 

explained that on August 25, 2014, he drove to the Bi-Lo parking lot and was looking for 

a “blue four-door Camry with a dent in the left front fender with a white female and a 

black male.” He said that this was “in the noon hours.” Officer Jenkins testified that the 

Bi-Lo was located in a shopping complex with multiple parking spaces and that across 

the street was a convenience store called Jiffy. Officer Jenkins testified that he was 

wearing his police uniform and driving an unmarked police car in the Bi-Lo parking lot 

when he noticed the vehicle he was searching for in the Jiffy parking lot. Officer Jenkins 

stated that the car he observed in the Jiffy parking lot “was a blue four-door Camry with 

the dent in the driver’s side.” The prosecutor showed Officer Jenkins a photograph, and 

Officer Jenkins identified it as the vehicle he stopped that day. 

Officer Jenkins explained that he observed the vehicle leave the Jiffy parking lot 

and then pull into the Bi-Lo parking lot. When asked what he saw after the vehicle 

entered the Bi-Lo parking lot, he said that the vehicle “started what [he] would call 

cruising or going up and down the lanes, the aisles of the parking lot.” Officer Jenkins 

testified that he saw the vehicle travel up and down three lanes. Officer Jenkins said that 

there were several free spaces in which the vehicle could have parked, but the vehicle 

passed by each of these available spaces. 

Officer Jenkins said that after observing the vehicle in the Bi-Lo parking lot, he 

initiated a traffic stop. Officer Jenkins stated that he turned on the blue lights of his 

unmarked car and stopped in front of the vehicle. He testified that Ms. Ewton was 

driving and that the Defendant was a passenger seated in the front seat. Officer Jenkins 

explained that upon exiting his vehicle, he “moved as quickly as possible with [his] tazer 

drawn towards the front of the vehicle to the driver’s side.” Officer Jenkins said that he 

was worried the individuals in the car might have had weapons or been disposing of 
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evidence. Officer Jenkins testified that as he approached the vehicle, Ms. Ewton raised 

her hands in the air. When asked what happened when he reached the driver’s side door, 

Officer Jenkins said that he observed “a clear bag of crystal substance” in Ms. Ewton’s 

lap. He also explained that as he “opened the door right at the door jam of the door by 

the floorboard and seat was another bag of crystal substance.” Officer Jenkins instructed 

Ms. Ewton to exit the vehicle, and he said that she reached into her bra and pulled out 

another “clear bag of crystal substance” and handed it to him. Officer Jenkins explained 

that based upon experience from his employment as a police officer, the substance 

appeared to be crystal methamphetamine. Officer Jenkins said that he found no money 

when he searched Ms. Ewton.

Officer Jenkins testified that he also instructed the Defendant to exit the vehicle. 

Officer Jenkins searched the Defendant and discovered $500. Officer Jenkins said that he 

found a “box of sandwich bags” in the passenger seat of the vehicle. Officer Jenkins also 

testified that based upon his experience performing “numerous undercover [drug] 

buys[,]” he believed that the way the vehicle was being driven indicated that someone 

was “dealing in the drug trade.” Officer Jenkins explained that “the vehicle [was 

moving] up and down the aisles” and “passing up parking spots that [he] would have 

thought a reasonable person would have” taken. He further explained that parking lots, 

such as the Bi-Lo parking lot, were typical places for drug deals to transpire. Officer 

Jenkins testified that he had specifically dealt with drug cases that had occurred in the BiLo parking lot and explained typical drug transactions as follows:

[Individuals m]eet in the car. I’ve had experience of [the drug 

transaction] not lasting . . . more than [fifteen] seconds because it’s – it’s all 

done by texting, by the phone, and they pass and they exchange money for 

the drugs and they’re gone. Sometimes [they] pull up and meet and get out, 

and do the exchange. One person will go to the other car, they’ll weigh the 

drugs right there, [and] they’ll leave. 

Officer Jenkins testified that drugs are normally packaged into plastic sandwich bags and 

that the “crystal meth” typically sold for one hundred dollars per gram. Officer Jenkins 

stated that based upon the information he had received, he placed both the Defendant and 

Ms. Ewton under arrest. 

Officer Jenkins also testified that the Defendant and Ms. Ewton were “[b]oyfriend 

and girlfriend” and that they resided at “White Beard Circle.” Defense counsel objected 

and argued that there had “been no basis laid to show that [the Defendant] lived” at that 

location. The trial court responded, “He’s saying that you can question him on or how he 

came about that, if he came about it.” 

Officer Jenkins testified that he went to the address at White Beard Circle and 
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conducted a search of the apartment. Inside, he located a “[m]eth pipe[,]” scales, and 

some plastic baggies. After being shown a picture of the meth pipe found in the 

apartment, Officer Jenkins explained that such a device was used to ingest crystal 

methamphetamine. Officer Jenkins said that he also found “sandwich bag corners cut 

out[.]” Officer Jenkins testified that based on his experience as a police officer, these 

items were “used in the drug trade.” 

On cross-examination, defense counsel questioned Officer Jenkins about his 

knowledge that the Defendant lived at White Beard Circle. Officer Jenkins said that he 

did not find any bills or newspaper or magazine subscriptions addressed to the Defendant 

at the apartment. 

Sharon Norman testified that she was employed with the chemistry division of the 

Tennessee Bureau of Investigation. She said that she performed forensic drug analysis, 

explaining that she “analyzed evidence submitted for the presence or absence of legally 

significan[t] substances.” Ms. Norman testified that she tested .68 grams of a substance 

for this particular case and confirmed the presence of methamphetamine. 

At the conclusion of the trial, the Defendant was found guilty as charged.

III. Sentencing

A sentencing hearing was held on August 5, 2016. The Defendant’s presentence 

report was entered as evidence, and the Defendant’s daughter testified on behalf of the 

Defendant.

Denisha Madden testified that the Defendant had eight children and that her father 

was employed with Koch Food prior to being taken into custody. Ms. Madden also 

testified that the Defendant was on a leave of absence from the job and that the job would 

still be available for the Defendant. Ms. Madden said that the Defendant was “loving, 

kind, [and] caring” and that she did not believe the defendant to be a drug dealer. 

On cross-examination, the prosecutor asked Ms. Madden about her father’s 

criminal history. Ms. Madden confirmed that her father was found guilty of murder and 

attempted murder. She said that she visited her father several times while he was 

incarcerated and confirmed that the Defendant “was charged within the prison system for 

possessing drugs and testing positive [for drugs] twice while in prison[.]” The prosecutor 

also questioned Ms. Madden about the Defendant’s employment. She explained that he 

began his job at Koch Food approximately two months before he was incarcerated prior 

to his sentencing hearing. Ms. Madden said that she was not aware of the Defendant 

being employed prior to the job at Koch Food. Ms. Madden also confirmed that in 

addition to this felony conviction, the Defendant had a misdemeanor conviction for 
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dealing drugs and had two additional felony charges pending at the time of the sentencing 

hearing. Ms. Madden said that the Defendant and her brother, who had “a lot of drug 

problems,” were co-defendants in another drug-related matter. Ms. Madden agreed that 

at the time the two were charged, the Defendant and her brother were “hang[ing] out 

quite a bit[.]” Ms. Madden also testified that Ms. Ewton was the Defendant’s fiancé and 

said that the two had been dating for approximately seven or eight years. Ms. Madden 

said that Ms. Ewton was a co-defendant in this case and that she was not aware of Ms. 

Ewton’s having any other convictions. Ms. Madden was not sure where the Defendant 

would live if he were released. 

At the conclusion of the sentencing hearing, the trial court sentenced the 

Defendant to nine years and six months of incarceration.

ANALYSIS

I. Sufficiency

The Defendant argues that there was insufficient evidence to support his 

conviction for possession of 0.5 grams or more of methamphetamine with intent to sell or 

deliver. Specifically, he claims that the State failed to prove actual or constructive 

possession. The State responds that there was sufficient evidence to sustain the 

conviction. We agree with the State. 

An appellate court’s standard of review when the Defendant questions the 

sufficiency of the evidence on appeal is “whether, in 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). This 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 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 guilty verdict “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 [both] direct and circumstantial 

evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
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“Direct and circumstantial evidence should be treated the same when weighing the 

sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). 

The reason for this is because with both direct and circumstantial evidence, “‘a jury is 

asked to weigh the chances that the evidence correctly points to guilt against the 

possibility of inaccuracy or ambiguous inference . . . [and] [i]f the jury is convinced 

beyond a reasonable doubt, we can require no more.’” Id. at 380 (quoting Holland v.

United States, 348 U.S. 121, 140 (1954)). To that end, the duty of this court “on appeal 

of a conviction is not to contemplate all plausible inferences in the [d]efendant’s favor, 

but to draw all reasonable inferences from the evidence in favor of the State.” State v. 

Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

As relevant here, it is an offense to knowingly “[p]ossess methamphetamine with 

intent to . . . deliver or sell methamphetamine.” Tenn. Code Ann. § 39-17-434(a)(4). If 

the amount of methamphetamine involved is 0.5 grams or more, the offense is a Class B 

felony. Tenn. Code Ann. § 39-17-434(e)(1); -417(c)(1).

“Tennessee courts recognize that ‘possession’ may be either actual or 

constructive.” State v. Ronnie Paul Trusty, No. W2012-02445-CCA-R3-CD, 2013 WL 

3488150, at *4 (Tenn. Crim. App. July 11, 2013) (quoting State v. Shaw, 37 S.W.3d 900, 

903 (Tenn. 2001)) (internal quotation marks omitted). Constructive possession exists 

when a person has “‘the power and intention at a given time to exercise dominion and 

control over [the item] either directly or through others.’” Id. (quoting Shaw, 37 S.W.3d 

at 903) (finding the evidence sufficient to support constructive possession when a bottle 

containing cocaine was found on the front seat of a car that was driven by the defendant). 

“Constructive possession depends on the totality of the circumstances in each case. It 

may be proven by circumstantial evidence.” State v. Robinson, 400 S.W.3d 529, 534 

(Tenn. 2013) (citing Tenn. Code Ann. § 39-17-419 (stating that possession may be 

inferred from “relevant facts surrounding the arrest”)). 

In this case, the evidence is sufficient to support the Defendant’s conviction. 

Officer Jenkins found three separate baggies containing what was later identified as 

methamphetamine after stopping Ms. Ewton and the Defendant. One bag was in Ms. 

Ewton’s lap, one bag was located inside her bra, and one bag was found near the driver 

side door. The Defendant was seated in the front passeger seat, in close proximity to the 

contraband. It is reasonable to infer that the Defendant could have exercised “dominion 

and control over [the bags containing methamphetamine], either directly or through” Ms. 

Ewton. See Trusty, 2013 WL 3488150 at *4. Officer Jenkins testified that before 

stopping the vehicle, he observed Ms. Ewton driving through the parking lot slowly and 

passing available spaces. Morever, Officer Jenkins found $500 cash on the Defendant 

and plastic baggies in the front passenger seat of the vehicle. Based on his experience on 
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the drug task force, Officer Jenkins explained that all of these factors were typical for the 

drug trade. Given the totality of the circumstances, we conclude that the evidence was 

sufficient to sustain the Defendant’s conviction for possession of 0.5 grams or more of 

methamphetamine with intent to sell or deliver. 

II. Officer Jenkins’ Testimony

The Defendant asserts that the trial court erred in allowing Officer Jenkins to 

testify about the Defendant’s relationship with Ms. Ewton and the Defendant’s residence. 

The Defendant argues that Officer Jenkins “had nothing more than mere speculation 

when testifying [the Defendant] and Ms. Ewton were in a relationship, and that [the 

Defendant] and Ms. Ewton lived together in an apartment on White Beard Circle.” The 

Defendant argues that the “only evidence showing a foundation for [Officer Jenkins’] 

testimony came at the suppression hearing when Officer Jenkins testified that the 

confidential informant told him that [Ms.] Ewton was with her boyfriend.” The 

Defendant contends that Officer Jenkins’ testimony about the Defendant’s relationship 

status and living arrangements were “rank hearsay and inadmissible[.]” The State argues 

that the Defendant has waived review of this issue. We agree with the State. 

Tennessee Rule of Appellate Procedure 3(e) treats issues “upon which a new trial 

is sought” as waived “unless the same was specifically stated in a motion for a new trial.” 

Here, the Defendant did not reference his issue regarding Officer Jenkins’ trial testimony 

about the Defendant’s relationship with his co-defendant or his living arrangements in his 

motion for new trial. As such, our review is limited to one for plain error. See Tenn. R. 

App. P. 36(b). 

A final judgment from which relief is available and otherwise appropriate 

shall not be set aside unless, considering the whole record, error involving a 

substantial right more probably than not affected the judgment or would 

result in prejudice to the judicial process. When necessary to do substantial 

justice, an appellate court may consider an error that has affected the 

substantial rights of a party at any time, even though the error was not 

raised in the motion for a new trial or assigned as error on appeal.

Id.

The doctrine of plain error only applies when all five of the following factors have 

been established:

(1) the record clearly establishes what occurred in the trial court;

(2) the error breached a clear and unequivocal rule of law;
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(3) the error adversely affected a substantial right of the complaining party;

(4) the error was not waived for tactical reasons; and

(5) substantial justice is at stake; that is, the error was so significant that it 

“probably changed the outcome of the trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d 

274, 282-83 (Tenn. 2000)). “An error would have to [be] especially egregious in nature, 

striking at the very heart of the fairness of the judicial proceeding, to rise to the level of 

plain error.” State v. Page, 184 S.W.3d 223, 231 (Tenn. 2006). 

Here, the Defendant has failed to establish that exclusion of Officer Jenkins’

testimony is necessary to establish substantial justice. Even without Officer Jenkins’ 

testimony about the Defendant’s being Ms. Ewton’s boyfriend and residing with her, 

there is ample evidence to support the Defendant’s conviction as discussed previously. 

Therefore, the Defendant is not entitled to relief on this issue. 

III. Search and Seizure

The Defendant argues that Officer Jenkins “lacked probable cause or reasonable 

suspicion to initiate the traffic stop and subsequently search the automobile in which the 

Defendant was a passenger.” Specifically, the Defendant argues that Officer Jenkins 

lacked probable cause because there was “limited information about the informant’s 

credibility[,]” “no information was revealed about the informant’s basis of knowledge[,]” 

and the “matching description of the car and its occupants [wa]s a completely innocent 

fact.” Furthermore, the Defendant argues that Officer Jenkins should have “waited for 

someone to approach the vehicle” to confirm that a drug transaction was taking place. 

The Defendant also argues that “the record is absent of information that [Officer Jenkins] 

confirmed the driver of the vehicle was Sherry Ewton.” Given these facts, the Defendant 

asserts that “the information received from the informant was not sufficiently reliable and 

the information received from the informant lacked sufficient corroboration, thus 

Detective Jenkins lacked reasonable suspicion to make the stop.” The State responds that 

the trial court properly denied the Defendant’s motion to suppress because “the informant 

provided detailed and consistent information on the vehicle, its occupants, and its 

location, and that Detective Jenkins corroborated this information and developed 

articulable suspicion sufficient to justify a brief investigatory stop.” 

On appellate review of suppression issues, 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 the evidence.” State v.

Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 
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(Tenn. 1996)). Questions about “the assessment of witness credibility, the weight and 

value of evidence, and the resolution of evidentiary conflicts are entrusted to the trial 

court” as the trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). When the 

trial court “makes findings of fact in the course of ruling upon a motion to suppress, those 

findings are binding on appeal unless the evidence in the record preponderates against 

them.” Id. Conversely, a trial court’s conclusions of law along with its application of the 

law to the facts are reviewed de novo without any presumption of correctness. Id.

Both the Fourth Amendment to the United States Constitution and article I, section 

7 of the Tennessee Constitution guarantee the right to be free from unreasonable searches 

and seizures. Tennessee’s constitutional protections regarding searches and seizures are 

identical in intent and purpose to those in the federal constitution. State v. Turner, 297 

S.W.3d 155, 165 (Tenn. 2009). In evaluating the constitutionality of warrantless 

searches, this court must “evaluate the search or seizure under traditional standards of 

reasonableness” by balancing an individual’s privacy interests against legitimate 

governmental interests. Wyoming v. Houghton, 526 U.S. 295, 300 (1999). “[A] 

warrantless search or seizure is presumed unreasonable, and evidence discovered as a 

result thereof is subject to suppression unless the State demonstrates that the search or 

seizure was conducted pursuant to one of the narrowly defined exceptions to the warrant 

requirement.” State v. Yeargan, 958 S.W.2d 626, 630 (Tenn. 1997). The State has the 

burden to demonstrate, by a preponderance of the evidence, that a warrantless search 

passes constitutional muster. State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 

2008).

An automobile stop constitutes a “seizure” within the meaning of both the Fourth 

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

Constitution. Delaware v. Prouse, 440 U.S. 648, 653 (1979); State v. Pulley, 863 S.W.2d 

29, 30 (Tenn. 1993). The authorities must have probable cause or an “articulable and 

reasonable suspicion” to believe that a traffic violation has occurred when they initiate a 

traffic stop. Whren v. U.S., 517 U.S. 806, 810 (1996). In this case, Officer Jenkins, who 

had received information from a confidential informant that the Defendant and Ms. 

Ewton were engaging in a drug transaction, stopped the Defendant. 

Before our supreme court’s ruling in State v. Tuttle, 515 S.W.3d 282 (Tenn. 

2017), Tennessee courts analyzed whether information provided by confidential 

informants rose to the level of probable cause utilizing the two-pronged test adopted by

the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. 

United States, 393 U.S. 410 (1969). See State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 

1989) (adopting the two-pronged Aguilar-Spinelli test “as the standard by which probable 

cause will be measured to see if the issuance of a search warrant is proper under [a]rticle 

1, [s]ection 7 of the Tennessee Constitution”). The Aguilar-Spinelli test required the 
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supporting affidavit to show: (1) the informant’s basis of knowledge; and (2) the veracity 

of the informant or the reliability of the informant’s information. Id. In Tuttle, our 

supreme court abandoned the “rigid” Aguilar-Spinelli test and adopted a totality-of-thecircumstances analysis for determining whether an affidavit establishes probable cause 

for issuance of a search warrant. Tuttle, 515 S.W.3d at 307-08. Our supreme court 

explained,

We reiterate that, under the totality-of-the-circumstances analysis, the 

informant’s basis of knowledge and veracity or credibility remain highly 

relevant considerations. Rather than separate and independent 

considerations, they “should [now] be understood simply as closely 

intertwined issues that may usefully illuminate the commonsense, practical 

question whether there is ‘probable cause’ to believe that contraband or 

evidence is located in a particular place.”

Id. (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)). 

In this case, the Defendant was stopped after Officer Jenkins received information 

from a reliable confidential informant that Ms. Ewton and another individual were selling 

drugs in a particular location. Officer Jenkins testified that the informant told him that 

they had seen Ms. Ewton and this individual selling methamphetamine in the same area 

the previous day and that they were selling drugs on the day of the stop. At the 

suppression hearing, Officer Jenkins testified that the informant told him that they also 

saw the two individuals selling drugs at the location the day of the stop. Officer Jenkins 

explained that he had relied on this informant multiple times during the previous three 

years and that information from the informant had led to several arrests and convictions 

for drug-related offenses. Moreover, Officer Jenkins’ observed a vehicle matching the 

informant’s description enter the Bi-Lo parking lot, the area in which the informant said 

Ms. Ewton and her companion were selling drugs. The informant said that the occupants 

of this vehicle included the driver, Ms. Ewton, a white female, and a front seat passenger, 

a black male. Officer Jenkins testified that as he observed the vehicle slowly driving 

through the Bi-Lo parking lot, he saw a white woman driving and a black man in the 

front passenger seat. Furthermore, once Officer Jenkins stopped the vehicle, he found a 

substance that appeared to be methamphetamine in the vehicle. Officer Jenkins 

adequately established the informant’s credibility by explaining his prior reliance on this 

informant regarding drug cases, and this was bolstered by the corroborating facts Officer 

Jenkins testified to about locating and stopping this vehicle in the Bi-Lo parking lot. 

Thus, the Defendant is not entitled to relief regarding this issue. 

IV. Sentencing

The Defendant argues that the trial court abused its discretion when it denied him
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an alternative sentence and sentenced him to nine years and six months of confinement. 

Specifically, the Defendant argues that the trial court improperly weighed the enhancing 

factors and mitigating factors of his case according to Tennessee Code Annotated 

sections 40-35-113 and -114. The State responds that the trial court properly sentenced 

the Defendant. We agree with the State. 

The Sentencing Reform Act was enacted in order “to promote justice” by ensuring 

that every defendant “be punished by the imposition of a sentence justly deserved in 

relation to the seriousness of the offense.” Tenn. Code Ann. § 40-35-102. In order to 

implement the purposes of the Sentencing Reform Act, trial courts must consider several 

sentencing principles. The sentence imposed for an offense “should be no greater than 

that deserved for the offense committed” and “should be the least severe measure 

necessary to achieve the pruposes for which the sentence is imposed.” Tenn. Code Ann. 

§ 40-35-103(2),(4). Thus, before a trial court imposes a sentence upon a convicted 

criminal defendant, it must consider: (a) the evidence adduced at the trial and the 

sentencing hearing; (b) the presentence report; (c) the principles of sentencing and 

arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal 

conduct involved; (e) evidence and information offered by the parties on the 

enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-

35-113 and 40-35-114; (f) any statistical information provided by the Administrative 

Office of the Courts as to Tennessee sentencing practices for similar offenses; and (g) any 

statement the defendant wishes to make in the defendant’s own behalf about sentencing. 

Tenn. Code Ann. § 40-35-210(b). 

When an accused challenges the length and manner of service of a sentence, this 

court reviews the trial court’s sentencing determination under an abuse of discretion 

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 

682, 707 (Tenn. 2012). This standard of review also applies to “the questions related to 

probation or any other alternative sentence.” State v. Caudle, 388 S.W.3d 273, 278-79 

(Tenn. 2012). This court will uphold the trial court’s sentencing decision “so long as it is 

within the appropriate range and the record demonstrates that the sentence is otherwise in 

compliance with the purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-

10. Moreover, under such circumstances, appellate courts may not disturb the sentence 

even if we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 

(Tenn. 2008). The burden of showing that a sentence is improper is upon the appealing 

party. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v.

Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). 

A. Length of Sentence

The trial court determined the length of the Defendant’s sentence as follows:
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Well, the first thing I have to do is set the length of the sentence. It 

could be anywhere between eight and twelve years on a – he’s Range [I] –

sentence, and the way you set the sentence is you take a look at the 

enhancing and mitigating factors. He actually is – in the back of the 

[c]ourt’s mind . . . a Range II Offender, so which means you have to look a 

little closer at this thing. Even though he’s not going to be punished as a 

Range II Offender, still, I mean, he’s got the record to be a Range II 

Offender, but anyway, I’m looking at the range in the standard range eight 

to twelve time span.

And the enhancing factors that would apply in this case would be:

(1) The [D]efendant has a previous history of criminal convictions 

or criminal behavior in addition to those necessary to establish the 

appropriate range. Since this is not being pled as a Range II, all of the 

convictions are in addition to what would be necessary to get him in the 

range, so two felonies, misdemeanor, and the two felonies are very[,] very 

serious felonies.

(2) The [D]efendant was a leader in the commission of an offense 

involving two or more criminal actors . . . that is an applicable enhancing 

factor.

(8) The [D]efendant, before trial or sentencing, failed to comply 

with the conditions of a sentence involving release into the community. 

We had at least one violation of probation in here, which, you know, is 

there. I’m not absolutely sure that there wasn’t another conviction out of 

Hamilton County that would fit that bill, but I’ll assume that it’s not 

properly documented, so – but there is some proof of that.

With regard to the rest of the enhancing factors, I don’t really find –

there are 25 enhancing factors, and so he is implicated in at least (1), (2) 

and (8) of the enhancing factors and because of the very serious crime that 

he was – the seriousness of the two, murder and attempted murder, felonies 

you would have to enhance this above the minimum. You cannot say well, 

that’s just so far in the past and it doesn’t make a difference. He didn’t 

really have a lot of opportunity to commit a lot of crimes during the 25-year 

period between then and 2008 when he got out, but the problem is even –

we have this record—even when he’s incarcerated he’s violating the law 

with regard to drugs. He’s got these write-ups where he was caught using 

drugs and so forth.

So anyway, I believe the sum of the enhancing factors that I’ve 

mentioned would cause him to be enhanced – I just jotted down here a year 

and a half, so I’m going to put his sentence at nine years and six months, 

and I don’t find any significant mitigating factors. You could use (1) 
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[D]efendant’s criminal conduct neither caused not threatened serious bodily 

injury, but you know, there’s not a lot of weight to be placed on, especially 

in this situation, because in drug sales and so forth they are inherently 

dangerous, you know, and in this case there doesn’t seem to be anything 

there[.]

. . . .

I don’t see anything else. I don’t see where the [D]efendant acted 

under strong provocation or any of these other mitigating factors, and I’ve 

looked at all of them, that they apply. So the sentence then will be nine 

years and six months.

We find the trial court appropriately weighed the enhancing and mitigating factors 

when determining the length of the Defendant’s sentence. See Tenn. Code Ann. §§ 40-

35-113; 40-35-114. Thus, the trial court did not abuse its discretion in determining the 

length of the Defendant’s sentence.

B. Alternative Sentencing

A defendant who is an especially mitigated or standard offender convicted of a 

Class C, D, or E felony should be considered a favorable candidate for alternative

sentencing absent evidence to the contrary. See Tenn. Code Ann. § 40-35-102(6)(A). 

However, no longer is any defendant entitled to a presumption that he or she is a 

favorable candidate for alternative sentencing. Carter, 254 S.W.3d at 347. Tennessee 

Code Annotated section 40-35-102(6) is now only advisory. See Tenn. Code Ann. § 40-

35-102(6)(D). 

A trial court should consider the following when determining any defendant’s 

suitability for alternative sentencing: 

(A) Confinement is necessary to protect society by restraining a 

defendant who has a long history of criminal conduct;

(B) Confinement is necessary to avoid depreciating the seriousness 

of the offense or confinement is particularly suited to provide an effective 

deterrence to others likely to commit similar offenses; or

(C) Measures less restrictive than confinement have frequently or 

recently been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1). A trial court should also consider a defendant’s 

potential or lack of potential for rehabilitation when determining if an alternative 

sentence would be appropriate. Tenn. Code Ann. § 40-35-103(5); State v. Boston, 938 

S.W.2d 435, 438 (Tenn. Crim. App. 1996). Ultimately, in sentencing a defendant, a trial 
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court should impose a sentence that is “no greater than that deserved for the offense 

committed” and is “the least severe measure necessary to achieve the purposes for which 

the sentence is imposed.” Tenn. Code Ann. § 40-35-103(2), (4).

An offender is eligible for probation if he or she is sentenced to ten years or less 

and has not been convicted of certain specified offenses. See Tenn. Code Ann. § 40-35-

303(a). While the trial court was required to automatically consider probation as a 

sentencing option, see Tennessee Code Annotated section 40-35-303(b), no criminal 

defendant is automatically entitled to probation as a matter of law, see State v. Davis, 940 

S.W.2d 558, 559 (Tenn. 1997). It is the defendant’s burden to establish his or her 

suitability for full probation. See Carter, 254 S.W.3d at 347 (citing Tenn. Code Ann. § 

40-35-303(b)). The defendant must demonstrate that probation will “subserve the ends of 

justice and the best interests of both the public and the defendant.” Hooper v. State, 297 

S.W.2d 78, 81 (Tenn. 1956), overruled on other grounds, State v. Hooper, 29 S.W.3d 1, 

9-10 (Tenn. 2000). Among the factors applicable to probation consideration are the 

circumstances of the offense; the defendant’s criminal record, social history, and present 

condition; the deterrent effect upon the defendant; and the best interests of the defendant 

and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

After reviewing the presentence report and considering the proof offered at the 

sentencing hearing, the trial court based its denial of any alternative sentence after 

weighing the following considerations: the Defendant’s physical and mental condition 

and social history; the facts and circumstances surrounding the offense and the nature and 

circumstances of the criminal conduct involved; the Defendant’s criminal history; the 

Defendant’s potential for rehabilitation; whether the Defendant could reasonably be 

expected to abide by the terms of his probation; whether the interest of society are being 

protected from possible future criminal conduct of the Defendant; whether measures less 

restrictive than confinement have frequently or recently been applied unsuccessfully to 

the Defendant; whether full probation would unduly depreciate the seriousness of the 

offense; and whether confinement is particularly suited to provide an effective deterrent 

to others likely to commit similar offenses. The trial court stated, “[W]hen you go 

through all of these considerations, there’s no way you can come up with any conclusion, 

but that . . . on balance these considerations all argue . . . against probation.”

The trial court also reasoned that “restraining a defendant who has a long history 

of criminal conduct” was necessary to protect society and applied this to the Defendant’s 

case. The trial court concluded that “primarily [the Defendant’s] problem” was the 

Defendant’s “long history of criminal conduct” and the Defendant

[h]ad a very . . . bad record of just trying to serve his time without getting 

into other trouble here. . . . [T]hese write-ups that [the Defendant] got, he 
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had over a period . . . of 13 years . . . starting with a refusal to comply order 

back in ’94. Drug possession and/or selling in ’95. In ’98 smoking. . . . In 

1998 he had refusal to participate in something he was ordered to 

participate in. A year later he got written up for refusing to follow an order. 

. . . [H]e had contraband in 2002. Created a disturbance in 2003. He had a 

positive drug screen in 2005. He abused some way the telephone privileges 

. . . in ’06. He violated somebody’s personal property rights . . . in ’06. 

Then he had another positive drug screen in ’07. So there’s a long period 

even within the penitentiary where his conduct [was] not – [was] either 

illegal or violate[d] the rules of his detention, so unfortunately, I don’t see 

anything in this case that would argue against him not just serving his 

sentence.

We agree that the Defendant’s criminal record adequately supports the denial of an 

alternative sentence. The trial court followed the statutory sentencing procedure, properly 

weighing the factors and principles in denying alternative sentencing, and placed its 

reasoning for denying an alternative sentence on the record. Accordingly, the Defendant 

has failed to establish an abuse of discretion or otherwise overcome the presumption of 

reasonableness afforded to the trial court’s denial of alternative sentencing, including 

probation. 

V. Judgment

We note that in the original indictment, the Defendant was charged for possession 

0.5 grams or more of methamphetamine with intent to sell or deliver. However, the 

indictment incorrectly cited to Tennessee Code Annotated section 39-17-455. In an 

amended indictment, the document is corrected and cites the correct statute, Tennessee 

Code Annotated section 39-17-434. The judgment in this case indicates that the 

Defendant was found guilty of possession of 0.5 grams or more of methamphetamine 

with intent to sell or deliver; however, the judgment incorrectly lists Tennessee Code 

Annotated section 39-17-455. We have determined that this is a clerical error and 

remand the case for entry of a corrected judgment.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgment of 

the trial court is affirmed, and the case is remanded for entry of a corrected judgment. 

_________________________________ 

D. KELLY THOMAS, JR., JUDGE