### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A ugust 14, 2002
STATE O F TENN ESSEE v. STEPHE N MASS EY, A /K/A STE PHANI

A
Direct Appeal from the Circuit Court for Giles County

No. 8765 Robert L. Jones, Judge

No. M2001-02686-CCA-R3-CD - F iled May 30, 2003

The appella

nt, Ste phen Massey, was c onvicted by a jury in the Giles County Circuit Court of two counts of selling less than .5 grams of crac k cocaine, Class C felonies, and th ree counts of selling .5 grams o

r more of crack c ocaine, Class B f elonies. The tr

ial cour t sentenc ed the ap

pellant a s a Range II multiple offender to an effective sente nce of eighteen y

ears incarceration in the Tennessee Department

of Correction. On appeal, the appellant contends that (1) the trial court erred in deny ing the appellant’s motion to dismiss on speedy trial gr ounds, (2) the trial court erred in de nying the appellant’s motion to sever, (3) the trial court erred in allowing the State to exclude two AfricanAmericans from the jury

based on their race, and

(4) the sentences imposed by the trial court were excessive. Upon review of the record and the part ies’ briefs, we affirm the judgments of the trial court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Ci rcuit Court are A ffirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined.

He rs he ll D. Ko ge r, Pu la sk i, Te nn es se e, fo r t he ap pe ll an t, St ep he n M as se y.
Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; Mike Bottoms, District Attorney Ge neral; and Richard H. Dunavant and Patrick S. Butler, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.
OPINION I. Fact ual Backgro

und On December 9, 1998, the Giles County Gr a nd Jury indicted the appellant on two counts of selling less than.5 gra ms of cra ck coca ine and th ree cou nts of sell ing .5 g rams or more of crack cocaine. These indictments arose from the following series of drug transactions targe ting the appellant.1 The record indicates that the male appellant had a fond ness for wom en’s clo thing an d often por trayed himself

as a woman. -2-

On Janu ary 29, 19 98, Inve stiga tor Br andon Beard with the Giles County Sheriff’s Department

met with confidential informant, Bar r y To dd Journey , and arr anged for Journe

y to purchas e crack cocaine from the appe llant. Investigator B eard provided Journey with thirty

dollars ($30) to purchase the crack cocaine and a tape recorder to rec ord the transaction. Journey dr ove to the appellant’s apartment complex at North Third and Washington. Investigator B eard followed, but parked across the street at the SunTrust Bank. He watc hed as Journey exited his tru ckand appro ached t he app ellan t’s ap artme nt bu ildi ng.

Journey knocked on the appellant’s door and, when a n unknown individual answered, askedto see the appellant. The individual replied that the appellantwas getting dressed, but that Journey could wa it in the living room. After “a couple minutes,” the appellant came into the living
room. Journey told the appellant that he wante d thirty dollars ($30) worth of c ocaine. The appellant reached into “her bra” and pulled ou

t a bag containing “two rocks” of crack cocaine. 1 Journey

paid the appellant and left. Investig ator Beard followed Journey back to the original meeting place, w here he retrieved

the tape recorder and the

bag containing the “two rocks.”Investigator B eard delivered the bag to the TBI crime laboratory for analy sis. The analysis reve aled that the “two rocks” weighed 0.1 grams and tested positive for cocaine.

On Februa ry 5, 1998 , Invest iga tor B eard met with Journey and a rranged another undercover

drug purchase. This time I nvestigator Beard provided Journey witha tape recorder and forty dollars ($40) to purchase the crack cocaine . He follo wed Jo urne y t o the apar tment comp lex, parked at the ba nk acros s the stre et, and w atched a s Journey approac hed the bu

ilding. T his time the appellant answered the doo r a nd Journey asked for f orty dollars ($40) wor

th of cocaine. The appellant hande d Jou rney a bag containing “several little rocks.” After completing the purchase, Journey met with Investigator B ear d and ga ve him the

bag an d the tape

record er. TBI analy sis revealed that the “rocks” weig hed 0.1 grams and tested positive for cocaine

. Following these two transactions, Investig ator Beard contacted Special

Agent Brad Elliott with the TBI to reque st his assis tance in the investigation. Investiga tor Beard wanted Special Agent Elliott to go un de rc ov er wi th Jo ur ne y, who had been purchasing the cra ck cocaine at “street level,” and attempt

to make larger purchases. Spec ial Agent Elliott agreed to help and enlisted the aid of Special Agent Charles Rountree. Special Agent Rountree “was to assist with the collecting of evidence by

making the tapes and also to provide security .”

On Februa

ry 19, 1998, t

he TBI agentsand Investigator B eard met with Journey. A transmitter

was plac ed on Spec ial Age nt Elliott, who was to accompany Journey to the appellant’s apartment and attempt to make the purchase. Special Agent Rou ntree and Investig ator Beard monitored the transaction on the receiver.2 Spe cial Ag ent E lliott testified tha t “a nicke l coin w ill weigh five g rams on ac curate scales.”
-3- When Special Agent Elliott and Journey a rrived, the appellant was standing outside his apartment. The appellant motioned f

or Specia l Agent Elliott and

Journey to follow h

im into the apartme nt. Upon entering, Special Agent Elliott observed that the apartment was vacant. Journey introducedSpecial Agent Ell iott to the a

ppellant , refer

ring to Sp ecial Ag ent Elliott as his cou sin “Ed.” Special Ag ent Elliott asked to purchase a quarter ounce of c rack cocaine, and the appellant agreed to a price of three hundred dollars ($300).

Special Agent E

lliott took a set of digital scales from his pocket and laid them on the table. The appellant then removed a plastic bag conta ining what appeared to be cra ck cocaine from his shirt and laid the bag on the scales. Special Ag ent Elliott agreed that “the weight wa s about
r ight” and paid t

he appellant three hundre d dollars ($300). A fter some “brief small talk ,” Specia

l Agent Elliott took possession of the crack cocaine, put the scal es back in his pocke t, and lef t with Jo ur ne y. They re

joined Special Agent

Rountree and Investigator B eard, who advised Special Agent Elliott that they had monitored and ma de a r ecordin g of th e transaction. Special Agent Rountree delivered the bag containing the

c rack cocaine to the TBI crime laboratory

for analy sis, which analysis reve aled that the “rocklike substance” weig hed 6.9 grams and tested positive for cocaine

. The final undercover drug transa ction occurred on March 5, 19 9 8. Special Agent Elliott, wired with a transmitter, went to the appellant’s apartment with Journe

y. T his time Special Agent Elliott was attempting to purcha se a half ounce of crack c ocaine. When Spec ial Age nt Elliott and Journey

entere d the appe

llant’s a partmen t, they noticed s everal

unknown individuals “soci aliz ing” in the living room. The appellant locked the front door and proc eeded to the kitchen. The app ell ant

cal led an unkn own

whi te m ale

into the kitc hen . Specia

l Ag ent Ell iott and Jo urne y waited in the living

room. Shortly therea fter, the white ma

le exited the kitchen with what appeared to be “a couple of rocks of crack [cocaine].” The appe llant then called“Ed,” Special Agent Elliott, into the kitchen. Journey

remaine d in the living room. When Spec ial Age nt Elliott entered the kitchen, he observed “a plate which had a cake tha t lo oked to be

approxima

tely an ounce of crac k cocaine in solid form.” A single edge safe ty razor was lay

ing next to the “cake” of crack c ocaine. Special Agent Elliott told the appellant that he wanted to pu rchase a half ounce of crack cocaine for five hun dred fift y do llars ($5 50). The appella nt stated t

hat the pr ice was s ix hundreddollars ($600) and that he wanted “to check [Special Ag ent Elliott] for a wire or a weapon.” In Special Age

ntElliott’s waistband, the appellant found the agent’s “issue forty caliber weapon.” The appellant commented, “That’s a police gun.” Special Ag ent Elliott denied that the weapon was
a poli ce gun

and the a ppellant said, “Well, okay .” Specia l Agent Elliott the

n took out hi s digit a l scales and the appe

llant asked for a ni ckel tocheck th e accur acy of the sc ales. 2 Special Agent Ell iott responded

that he di d not have a

nickel, so the app ellant as ked anoth er individ ual, Mich ael Phillip s, to bring him a nick

el.3 Th e Sixth A men dme nt, made applicable to the st ates through t he Fourteenth Amendment, provides in part that “[i]n all crimi nal prose cuti ons, t he accused shal l en

joy t he ri ghtto a s peedy a nd publ ic t ria l. ” U.S. Const . amen d. VI. Similarly, A rticle I, sec tion 9 o f the T enne ssee C onstitutio n pro vides that “in pro secutio ns by ind ictm ent or present ment [t

he accused h as the right to] a s peedy publi c tri al.”

-4- After ensuring that the scales were ac curate, the appellant began “cutting chunks off this large cake [of crac

k cocaine].” The appellant placed “the chunks” on the scales until he had an amount weighing roughly

0.5 ounces. The appellant then placed “ the chunk s” of cr

ack coc aine into
a plastic baggy , which he tied up and handed to Special Agent Elliott. Special Agent Elliott put the ba ggy into his pocket and paid the appellant. Special Agent Elliott then picked up his scales a nd startedto leave. H owever , before he exited th

e apart ment, the appe

llant called Speci al Age

nt Elliott back into the kitchen and asked to borrow his scales “to weigh up a quarter ounce that he was g oing to sell to Michael Phillips.” Special Agent Elliott took out his scales and observe d the appe llant sell a quarter ounce of crac

k cocaine to Phillips for two hundred fifty dollars ($250).

After collecting his scales, Special Agent Elliott and Journey left the apartment and rejoinedSpecial Agent Rountree and I nvestigator

Beard . Special

Agent E lliott briefed the officers
on the tra nsaction and plac ed the cr ack coc aine in a

n evidenc e bag. Special Agent Ell iott subseque ntly delivered the bag to the TBI cr ime labor atory . Analy sis reve aled tha t “the ch unks” weighed 12.4 grams and tested positive for cocaine.

The appellant was convicted by a jury of two c ounts of selling less than .5 grams of crack cocaine and

three counts of selling .5 grams or more o f crack cocain e. Fol lowi ng a hear ing, the trial court sentenced the appellant as a Rang e I I mult i ple offender to an effective se ntence of eighteen ye ars inca

rcera tion. On a

ppeal, th e appell ant conte

nds that ( 1) the tri al court erred i n denying the appe llant’s mo tion to dismiss on speedy trial g rounds, (2) the trial court erred in deny ing the appellant’s motion to sever, (3) the trial court erred in allowing the State to exclude two AfricanAmericans from the jury base d on their race, and (4) the sentences imposed by the trial court were excessive. II. Analysis A. Speedy Tria

l Both the Sixth Amendme

nt to the United States Constitution and Article 1, section 9 of the Tennessee Constitution guarantee an acc used the right to

a speedy trial. 3 An identical right is found in T ennesse e Co de Anno tated se ction 40- 14-101 (1 997), whi ch provid es that “ [i]n all criminal prosecutions, the accus ed is entitled to a speedy trial, and to be heard in person and by counsel.” M oreover, R ule 48(b) of the Te nnessee Rules of Cr

iminal Proc edure pr

ovides tha

t, “if there is unnece ssary

delay in bring ing a de

fendant to trial, t he court m ay dismiss the indictmen t, present ment, informat

ion or com

plaint.” These g

uarantees were designed “to protect the accused agains toppressive pre-trial incarcera tion , the an xiety and concern due to unresolved criminal charg es, and the risk that evidence will be lost or memories diminished.” State v. Utley , 956 S.W.2d 489, 492 (T enn. 1 997) ( citi ng Doggett v. United States , 505 U.S. 647, 654, 112 S. Ct. 2686, 2692 (1992)).4 The reasons for delay were gleaned from the record and the appellant’s motion to dismiss. At the hearing

on th e mo tion to dismis s, the t rial court accepted as accurat e the facts alleged by the appellant in the moti on
. Acco rdingly, where the reco rd did no t provide the ne cessary information, we have relied o n these facts.
-5- In Barker v . Win go , 407 U.S. 514, 5 30, 92 S. Ct. 2182, 2191-92 (1972), the United States Supreme Court established a balancing test to be used by cour ts in determining whether an accused has been denied his right to a speedy trial. See also State v. Bishop , 493 S.W.2d 81, 83-85 (Tenn. 1973) (ad opting the Barker balancing test in Tennessee). Under the Barker

analysis, four factors must be considered: (1) the length of the delay ; (2) the reasons for the delay ; (3) the accused’s assertion of the right to a speedy trial; and (4) the prejudice resulting from the delay

. Barker , 407 U.S. at 530, 92 S. Ct. at 2192. “This bal ancing test ‘nec essarily

compels courts to approach speedy trial cases on an ad hoc basis.’ I f a court determines after apply ing this balanci ng test tha t a defendant has been denied a speedy trial, the remedy is reversal of the conviction and dismissal of the criminal charges.” State v. Simmons , 54 S.W.3d 755, 759 (Tenn. 2001) (citations omitted)

.

The length of the delay

“triggers” the spee dy trial analy sis. Barker , 407 U.S. at 530, 92 S. Ct. at 219 2; State v. Wood , 924 S.W.2d 342, 346 (Tenn. 1996) . “Until there is some delay which is presumptively prejudicial, there is no necessity for

inquiry into the other

factor s that go

into the balance.” Id. Genera

lly, the dela

y mu st approa

ch one y ear or m ore in order to trigger the Barker analy sis. Simmons , 54 S.W.3d a t 759. The

indictmen

t charging the a

ppellant with the in stan t offenses was returned on December 9, 1998. The a ppellant was not tried until September 10, 2001. Thus, the delay be

tween indictment and trial was just under three y ears. In State v. Vickers , 985 S.W.2d 1, 5 (Tenn. Crim. App. 1997 ), this c ourt concluded that a delay of three y ears and nine months was not a

presumpt ive spee dy t

rial viola tion. More over, ou

r suprem e court h as previ ously concluded

that a “total delay

of a little over two ye ars is not p er se extr eme and i s not such a

length of delay that fr

om this fact alone we would presume prejudice.” Bishop , 493 S.W.2 d at 85

. Accord ingly, we m ust ex amine the rem ainin g Barker factors.

Gene ra ll y, the reasons for the delay fall into one of four categories: (1) intention a l delay by the State t

o gain a t actical advantage over the accused or delay

designed to harass the
accuse d; (2) bureaucratic indifference or negligence; (3) de

lay nece ssary to the fa

ir and effective prosecution of the case; and (4) delay caused, or acquiesced

in, by the defense

. Wood , 924 S.W.2d at 346-47. “In

tentiona l delay must be we

ighted h eavily agains tthe government, while neglige nce or oversight are

consider ed aga inst the g overnme

nt but aff orded co mparativ ely

more neu tral wei ght. Valid reasons, such as the inability to loca te a witness, justify an appr opriate delay .” State v. Easterl y , 77 S.W.3d 226, 2 36 (Te nn. C rim. A pp. 20 01) (ci ting Barker , 407 U.S. at 531, 92 S. Ct. at 2192).

In the instant case, there were numerous reasons for the delay of trial. 4 The appellant was indictedDecember 9, 1998. On March 4, 1999, while in state custody for violating parole on prior charg es, the appellant was served with notice of the indictment. On April 12, 1999, th e appellant filed a p ro se motio n assert

ing his r ight toa speedy tr

ial. On May 10, 1999, the appellant
was arraig

ned and Sh

ipp R. Weems , assistan

t p ublic defender, was appointed to represe nt the-6-

appella nt. However, the appellant was not satisfied with Weems’s representation, as evidenced by the appellant’s letter to the Giles County Court Clerk da ted August 18, 1999, notifying the court that he ha d f il ed a c om pl ai nt ag ai ns t W ee ms wi th th e B oa rd of Pr ofes si on al Re sp on si bi li ty. Su bs eq ue nt ly, on Augu st 23, 1999 , the tria l court e ntered a n order a llowing Weems to withdraw as counsel, but directing the public defender’s of fice to continue to represent the appellant. The jury trial, previously set for Septe mber 2, 1999, was continued until March 21, 2000.

On November 15, 1999, R.H. Stovall, Jr., the assistantpublic defende r subsequ ently appointed to represent the app ellant, filed a motion to withdraw as counsel due to a conflict of interest

. In his motion, Stovall sta ted that he had re cently

become aware that the public defende r’s office was rep

resenting an ind

ividual who was like

ly to be a witne ss again st the ap pellant a t trial. The trial court

granted Stovall’s motion to withdraw and appointed Tim Underwood to represent the appella nt. On March 8, 2000, the State moved for a continuanc e and the trial court granted the State’s motion over the objection of the appellant. Trial was reset for A ugust 2, 2000.

On May 11, 2000, Underwood filed a motion to withdraw as counsel, asserting that “[the appellant] has made it clear his desire to dismiss Timothy P. Underwood the reby creating an inability to work with [theappel lant] .” Fol lowi ng a hearing on the motion, the trial court allowed Underwood

to withdra

w and, on Jun

e 2, 2000, appointe d Hershe ll D. Kog er to repr esent the appella nt.
On July 5, 2 000, t he appellant, through counsel, filed a motion for continuance , stating that counsel had only recently bee n appointed, was scheduled to represent another

client in
a capital m urder c ase duri ng the w eek of July 17 throug

h July 31, 2000, a

nd, thus, did not have time to adequately

prepare for the

appellant’s trial. The trial court granted the motion and the case was subseque ntly reset for trial onDecember 27, 2000. However, on that date the appellant’s case was passedand the trial was subsequently rese t for September 10, 2001, at which t ime the ap

pellant d id go to tri al.

Based

on th e forego ing, we find no evidence of intentional delay on the part of the State. Alth ough the State

did reque st a

continuance which the trial court grante d over the appellant’s ob jection, no reason exists in the record, nor did the appellant assert any reason, for the State’s request

. Accord

ingly , we are

unable to

conclude that the Sta

te’s motio n was a

n effort to gain a tactica l advanta ge ove r or har ass the a ppellant

. Instead, we find that the majori ty of the delay was caused by the appellan t. By the time his case

went to tr

ial, the appe

llant had been re present ed by four dif ferent attorne ys. His first at to rn ey, Ship Weems, was allowed to withdraw from representation after the appe llant filed a complaint agains t him with the

Board o f Profes sional Res ponsibility . Tim Underwood was also allowedto withdraw after the appellant “made it clear his desire to dismiss . . . Underwood thereby creating an inabil

ity to work with the [appellant].” In fact, the rec ord reflects that, prior to trial, the appellant filed a complaint against his current coun sel, Her sh ell Kog er. Only Assistant

Public Defender Stovall withdrew fo r a

reason other tha

n the appe llant’s in ability

to cooper ate with c ounsel.-7- The appellant also contributed to the delay of trial by filing a

motion for continuance shortly after the appointment of Koger. More over, the appella nt filed a motion to sever offenses which, if grante d, would ha

ve resul ted in gr eater d elay . As noted

by t he trial c ourt, [i]f I sever any

of these counts, the ones that are severed aw ay are going to be delaye d even further. . . . [It would take ] two or thre e ye ars, if w e try one a

t a time. We are only g

iven about eight to ten da ys a month, that’s all we have got, and handle a thous and case s a year. Accord ingly , this fac tor will be

weighe d again st the app ellant.

The third factor to be c onsidere d is whethe r the ac cused as serted h

is right to a

speedy trial. Ba rker , 407 U.S. a t 531, 92 S. Ct . at 2192; Simmons , 54 S.W.3d at 760. “[A] defendant’s assertion of his speedy trial rig ht . . . is entitled to strong evidentiary weight in determining whether the defendant [was] deprived of that right.” Barker , 407 U.S. at 531-32, 92 S. Ct. at 2192-93. On the other hand, “th e failur e to assert that right will make it difficult for a defendant to prove that he
was denied a speedy

trial.” Id . at 532, 92 S. Ct. at 2193. As previous ly n oted, on A pril 12, 1999, the appella

nt filed a pro se “M otion to Dis miss Indictment and/or Fast and Spee dy Trial Right for Final Disposition.” Thus, the appellant asserted his right to a speedy trial within six weeks of being notifie d of the charges pending a gainst him. Additionally, on Aug ust 26, 2001, counsel for th e appellan t fi led a “Motion to Dismiss Indictment - Speedy Trial Issue,” rea sserting the appellant’s right. T his facto r weighs in favo

r of the a ppellant

. The final and most important factor to be considered is the prejudice suff ered by the accused. Barker , 407 U.S. at 532 , 92 S. Ct. at 2193 ; Simmons , 54 S.W.3d at 760. P rejudic e is to be assessed in light

of the interests of the accuse d which the right to a spee dy t

rial was designed to protect : (1) to pr

event und ue and op pressive incarc eration

prior to tr ial; (2) to minimize the anxiety and concern that result from being accused of a crime; a nd (3) to limit the r

isk that the

defense will be impaired. Simmons , 54 S.W.3d at 760.

In the instant case, the appellant does not claim that he suffered f rom anx iety and
concernor that the

delay impaired his a bi li ty to prepare a defense We also conclude that the appel lant has not de

monstrated that he w as subject to undue a nd oppre ssive inc arcer

ation prio r to trial. As previously noted, at the time of the indictment, the appellan t was in state custody for violat ing parole o n prior charge s. Moreov er, evid ence at the sente ncing hearing

reveal ed th at th e appellant was on pa

roleat the time

he committ

ed the ins tant offe

nses. Accordingly , the appellant
was required to serveany sentenc e received for the instant offenses c onsecutive to the one he was serving when indicted. See Tenn. Code Ann. § 40- 28-1 23(a ) (Su pp. 20 02). We conclude that the appellant did not suffer any

appreciable prejudice from the dela y in trial. This factor doe s notweigh in favor of the ap pellant.

After examining and balancing the Barker factors, we conclude that the appellant has failedto establi sh a spee dy t rial viola tion. Although the

appella nt asser ted his right to a

speedy trial-8-

early in the ca se, we f

ind that he

contribu ted substa ntially to the delay while suf

fering no appre ciable prejudice. The appellant is not entitled to relief on this matter.

B. Motion to Sever We review a tria l cour t’s de termi natio n rega rding the severance of offenses for an abuse of discretion. State v. Shirley , 6 S.W.3d 243, 247 (Tenn. 1999). In other wor ds, “a trial court’s refusal to sever offenses will be reversed only when the ‘c ourt applied an incorrect legal standard, or reac

hed a de cision whi ch is agains t logic or reasoning that caused an injustice for the party complaining .’” Id. (quot ing State v. Shuck , 953 S.W.2d 662, 669 (Tenn. 1997)).

Rule 14(b)(1) of

the Tennessee Rules of Criminal Procedure provides that “[i]f two
or more offenses have been joined or consol idated f or trial pursuant t

o Rule 8(b ), the defendant shall have a right to a severance of the offenses unless the offenses are par t of a common scheme or plan and the evidence of one would be admissible upon the trial of the others.” On appeal, the appellant does not argue that the offenses wer e not part of a

common scheme

or plan. Instead, the appe llant asserts t hat the evidence

of one of fense w ould not be

admissible

at the tri al of the

other of fenses.

To determine whether the evidence of one offense would be ad missibleat the trial of the other offenses, we must look to Rule 404(b) of the Tennessee Rules of Evidence. “Evide nce o f other crimes . . . is not adm issible to p

rove the character of a

person in order to show act ion in conform ity with the character trait.” Tenn. R. Evid. 404(b). How ever, su ch evidence may be admissible

if the evidence is relevant to a material issue other than character and its probative value outweighs the danger of unfair prejudice . Tenn. R . Evid . 404(b)(2)-(3). Tennessee ca se law has established that evidence of other crimes may be admissi ble to show motive, int

ent, guilty knowledge, identity, absence of accident or mistake, or a common scheme or plan. Statev. Ho yt , 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995).

The appellant’s defense at trial was that he was not selling crack c ocaine f

or profit, butwas “providing it for [his] friends.” Accord ingly , the evid

ence of each of fense w as relevant to prove the appe

ll a nt’s intent and its probative value outweighs the danger of unfair prejudice. Becau se the offenses occurre d within a six week period and involved the same confidential informant and basic procedure for purc hasing the crack cocaine , the evidence was also rele vant to prove common scheme or plan. For these reasons, we conclude that the trial cou rt did not a

buse its discreti on in ref

using to g rant the severa nce. Thi s issue is w ithout mer it.

C. BatsonChallenges Next, the appellant contends that the State used its peremptory c hallenges to exclude prospective jurors based upon race in violation of Batson v. Kentucky , 476 U.S. 7 9, 106 S. Ct. 1712 (1 98 6) . S pe ci fi ca ll y, the appellant asserts that “all of the prospective black jur ors who ma

de [it to the jury panel] we

re struc k by the State .” We note that the trial court excused two prospective African-American

jurors for cause. Thereafter , the State exer cis ed its per emptory challen ges to exclude African-American jurors Jane Gilbert and Da vid Garrison. The appe

llant cha llenge s these exclusions on appea

l.-9- A defendant

seeking to raise a Batson claim must make a pr

ima faci e showing that the State pur

posefull y e xercised its perem ptory challen ge on the basis of race. Batson , 476 U.S. at 93-94, 106 S. Ct. at

1721; Woodson v. Porter Brown Limestone Co. , 916 S.W.2d 896, 902 (Tenn. 1996). To make th

is prima f acie showing, the defendant “must establish that a conside ration of all the relevant circumstances raises an infe rence of purposeful discrimination.” Woodson , 916 S.W.2d at 903 (c itin g Batson , 476 U.S. at 97, 106 S. Ct. at 1723). O nce the defen dant has established a prima facie case of purposeful discrimina tio n, the burden shifts to the State to articulate a raceneutral explanation for the challenge. Batson , 476 U.S. at 97, 106 S. Ct. at 1723. “This explanation must be bas ed on s ometh ing m ore than s tereotypica l assumptions, but it need not rise to the level required to justify the exer cise of a challenge for c ause.” State v. Ellison , 841 S.W.2d 824, 826 (Tenn. 1992) (citi ng Batson , 476 U.S. at 97, 106 S. Ct. at 1723). If the State provides a rac e-neutral explanation, the trial

court mus tthen consider all the facts and circumstances to determine whethe r purpose ful d iscrimination has been established. Woodson , 916 S.W.2d a t 903. I n making its determination, the trial

court mus t caref

ully articula te specific

reasons for each of these finding s on the record. Id. a

t 906. The trial court’s factual findings are imperative in this context and will not be set aside on appeal unless clearly erroneous. Id.
In the instant case, the

trial court found that the State’s challenge of the prospective jurors was n ot dis crim

inato ry beca use b oth of

the ju rors “ha[d] a kin ship w ith th e [app ella nt].” We agree. During voir dire, prospective juror Gilbert r elated th at she ha

d known the

appella nt for twe nty ye ars, lived in hisneighborhood, and considered him to be a friend. Mor eover, when asked

by the Stateif she would be uncomfortable finding the appellant g uilty, Gilbert

responded, “I

don’t know.” The other prospective juror, Garrison, informed the parties that he had known the appellant for over ten years a

nd that his wife was the appellant’s “fou rth or fifth co usin.” The State’s peremptory chall enge sheet indicated that Garrison also cons idered t

he appellant to be a fri end. Clea rly , the State had rac e-neutr

al basesfor cha

llengin g these

jurors. T his issue iswithout me

rit. D. Sentencing Fi na ll y, the appellant contends that the s entence s imposed by the trial court we re excessive. When an appellant challenges the length, range, or manner

of service of

a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court

are correct. Tenn. Code Ann. § 40-35-401( d) (1997). However, this presumption of correctness is “co nditioned upon the affirmative showing in the record that the trial c ourt considered

the sente ncing p rinciple s and all r

elevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The burden ison the appellant to show that the sentence is improper. Tenn. Cod

e Ann. § 40 -35-401, Sentencing Commiss ion Comment s.
In conducting our r

eview, th is court mu st

consider (1) the evidence, if any , received at trial and at the sentencing hearing ; (2) the present ence re port; (3) the principles of sentencing and the argume

nts of cou nsel rela tive to the sentenc ing alte

rnative s; (4) the nature and characteristics of the offenses; (5) any

mitigating or enhancement factors; (6) any stateme nts made by the

appellant5 W e note that t he 2002 am endment to this sect ion added present enhancement factor (1), thereby renumbering former (1)-(2 2). See Tenn. Code Ann. § 40-35- 114, Amendm ents. However, for the purp oses o f this opin ion, we will use the former designations applicable at t he time of the appellant ’s sent encing.

-10- on his own behalf; and (7) the appellant’s potential for reha bilitation or treatment. Tenn. Code Ann. § 40-35-1 02 and -1 03 (1997) , -210 (Su pp. 2002) ; see also Ashby , 823 S.W.2d at 168.

The appella

nt was sen tenced a s a

Range II multiple offender, for

which the applica ble
ra nge for Clas s B felon

ies is twelve to twe

nty ye ars and f

or Class C f

elonies issix to ten y

ears. Tenn. Code Ann. § 40-35-112(b)(2)-(3) (1997) . Th e presumptive sentence for both Class B and Class C felonie s is th e minimu m within the applicable range if there ar e no enhancement or mitigating factors. Tenn. Code Ann. § 40 -35-21 0(c). If the trial c ourt finds that such factors do exist, the court mus t start at the presumptive sentence, enhance the se ntence within the range as appropr iatefor the e

nhance ment f actor s, and the

n reduce the sente nce within the ran ge as a

ppropria te for the mitigating factors. Tenn. Code Ann. § 40-35-210( e). We note that there is no mathematical formula for valuating factors to calculate the appropriate sentence. State v. Boggs , 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be af forded anexisting factor is left to the trial court’s discretion so long as the cour t complie s with the purposes and principles of the 1989 Sentencing Act and its findings are ade quately supported by

the record.” Id. at 475-76.

In the present case, the

record reflects that the trial court complied with the statutory
se nten cing principles and procedures. The trial court consider ed the nature of the offenses, the sentencing principles, the arguments of counsel, the presentence report, and the testimony presented at trial and at sentencing, including the appe llant’s own testimony. Based upon this information, the trial cou rt applied t

he follow ing enh anceme

nt facto rs: (1) the a ppellant has a pre vious histo

ry of crimin al convictions; (8) the app ellant ha s a previ ous histor y of unwillingness to co mply withthe conditions of a sentenceinvolving releas e inth e c om mu ni ty; and (13)(B) the felony was c ommitted while the appellant was on parole; Tenn. Code Ann. § 40-35-114 (1997). 5 The trial court al so considered mitigating factor (1) , that the appellant’s criminal conduct neither caused nor threatened serious bodily injury, Tenn. Code Ann. § 40-35-113(1), but was uncertain that the factor applied, stating, “If that fa ctor has any

implication in this case

at all, it is being given very limited weight, maybe

enough to offset the [appellant’s] . .

. prior record.” The trial court initially sentenc ed the appellant to sixteen year s incarceration for each Class B felony

and eight y ears incarc eration for eac h Class C fe

lony with the se

ntencesto be served
co nc ur re nt ly. However, upon further co nsideration, the trial court concluded that an effective sentence of sixtee n years was not “ fair” a nd amended the sent

ences f or the Cla ss B felo nies to eighteen years, resulting in an effective se ntence of eighteen y

ears incarceration.

Onappeal, the appellant contends that the trial court affor d ed the enhancement factor s too much weight. Specifically , the appellant asserts that “it appears that the [trial] cour

t ultimatel

y gavethe enhancement factors extra weig ht based on the fact that consecutive s ent encing was not-11-

appropr iatein the

[appe llant ’s] case .” Acco

rding to the appe llant, the trial cou rt enhanced his sentence based up on the “in ability ” to impose

consecu tive sente nces. The appe

llant arg ues, “When sentencing a defendant within a range, the sentence

must be based only upon statutory enhancement factors. The inability to sente nce consecutively

is not a statutory enhance ment factor.”

After concluding that t

he appellant did not meet the criteria for consecutive sentencing under Tennessee Code Annotated section 40-35-115(b) (1997), the trial court stated, “I
amnot satisfied for sure, though, that 16 ye ars is a f air sente nce in thi s case. I

am going to amend the Class B felon[ies] to 18 years instead of 16 y ears and find that [the appella nt] will serve all of his sentences concurrently .” We do not interpret this language to sugg est that, upon determining that consecutive sentencing was inappropriate, the trial court afforded the e nhancement factors greater weight

. Rather, t

his language indicates that the trial court did not feel it had properly sentenced the appella nt. As previo

usly noted, the weight to be afforded an existing factor is left to the trial court’s discretion so long as the court complies with thesentenc ing principles a nd its findings are

adequa tely supported by the record. Boggs , 932 S. W. 2d a t 4 75- 76. In the instant case, after determining that
an effective sentence of sixteen ye ars was inapprop

riate, th e trial c ourt, as it was free to do, sim ply afforded the existing enhanc ement fa ctors g reater weight , sentenc ing the a

ppellant to eighteen years incarc eration . This issue

is without me

rit.

III. Conclusion Finding no error , we aff

irm the jud

gments o f the tria

l court.

___________________________________ NORMA McGEE OGLE, JUDGE