### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Septem ber 18, 200 2 Session

STATE OF TENNESSEE v. SAMMIE DON LOGUE
Direct Appeal from the Circuit Court for Maury County No. 11349 Stella L. Hargrove, Judge

No. M2001-02497-CCA-R3-CD - F iled April 28, 2003

The Maury

County Grand Jury indicted the

Defendant for selling less than 0.5 gr ams of cocaine, and following a trial, a Maury Co un ty j ur y convicted the Defendant of the casual e xchange of a controlled substance. The trial court senten ced him to eleven m onths, twe

nty -nine da

ys’ incarceration

and suspended all but forty -five days of the sentence. On appeal, the Defe ndant argues that the trial court er red by refusin g to allo w him to introduce evidence concerning the sourc e of the cocaine and by

deny ing him full probation. We find no error by the trial court and therefore affir m the Defendant’s conviction and sentence.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J AMES C URWOOD W ITT , J R ., JJ., joined.
John S. Colley, II

I, Columbia, Tennessee, for the a ppellant, Sammie Don Logue.

Paul G. Summers, Attorney Gene ral and Reporter; Helena Walton Yarbrough, Assistant Attorney Genera l; T. Mic hael Bo ttom s, D istr ict Attorn ey Gen era l; Lawr enc e R. Nic kel l, Jr ., a

nd D ani el J. Runde, Assistant District Attorney Gene rals, for the appellee, State of Tennessee

.
OPINION

The following evidence was presented a tthe Defendant’s trial: Ken York, city manager for the City of Spring Hill, testified that rec ords from his office indicated that the Def endant was employed as a police patrol officer for the Spring Hill Police Depa rtment from

1995 until he resigned in 1999. York stated that as a police officer, t he Defendant was required to attend forty hours of training each y

ear.

James David Shannon, an investigator for the Maury

County Drug Ta sk Force, testified that he was involved in the investigation of this case. He reported that a c onfidential informant was used in this case and explained that a confidential informant is someone who has “past criminal charg es-2-

that they might need to work off.” He also ex pl ained tha t confide ntial info rmants who cooper

ate withpolice are n ot prosec ute d for their own crimes. Shannon testified that the confidential informant in this case was Jennifer Arango. He stated tha t while he w as working undercover, Arango twice sol d him

quantities of marijuana, first six grams and later one ounce. He reported that after her arr

est, Ara ngo ag reed to c ooperat

e withthe polic e in excha nge fo r their a greem ent not to prosecu te her for the sale s. Shannon also agreed to pay Arango for

successful transactions, and he stated that he believe d he paid her between $50 and $100 for the transaction involving the Defendant.

In her capacity

as a confidential informant, Arango firs t assisted the authorities in making two arrests in cases involving marijuana. Following these two arrests, Arang o telephoned Shannon and told him that the Defendant also sold marijuana. Shannon stated that he was familiar with the Defendant

as a polic e offic er in Spri ng Hill, and he a lso knew that the Defendant was apply ing for

a position as a police officer for the City of Columbia. He recalled that he was theref ore extre mely surprisedto hear Arango mention the De fendan t’s na me. S hanno n stat ed tha t at t he tim e Arango namedthe Defendant as a potential suspect, the Defe ndan t was w orkin g a s a secur ity g uard at a McDonald’s restaurant.

At approximately 10:00

p.m. on September 24, 1999, Arango was outfitted with a body wire and sent to mee

t the Def endant a t the McDo nald’s wh

ere he w orked. She was expected to pu rchase

one ounce of

marijuan a from the

Defend ant for $ 100. Shann on test ified tha t prio r to he r leavi ng, officers search

ed Aran go’s c arand purse , and the o fficer s were sa tisfied th at Arang o was not in possession of marijuana at the time she left to meet the Defendant. Two officers we re already stationed at the McDonald’s waiting for Arang o to arrive. When Arango arrived, she met and spoke withthe Defendant, but he did not sell her marijuan a at that t i me. An audiotape was made of the meeti ng. Following Arango’s meeting with the Defendant, Shannon and Arango met a t Shannon’s office , and he to ld Arang o to infor m him of any

further contact she had w ith the Defendant

.
On September 29, 1999, at approximately 4:20 p.m., Arang o telephoned Shannon, and Shannon instructed her to return to his office. There, off icers again searche d her purse and the vehicle that she was driving, which was a leased c ar. On this occasion, a wire w as placed inside Arango’s vehicle. Arango planned to m eet th e D ef

en da nt at a S ho ne y’s pa rk in g l ot an d b uy a quantity of cocaine for $50. Four underc over officers, in two separate vehicle s, were present at the

scene: Shannon and another officer listened to and rec orde d the tr ansaction on audiotape in one vehicle. Two other office rs we re also present in a second vehicle to videotape the tr ansaction. Shannon testified that the Def enda nt arrived at the scene at approximately 5:00 p.m., and the transaction took place. After the transaction, the office rs follow ed Aran go back to the Dr ug Task Forceoffice, and Arango g ave them a plastic baggie c ontaining cocaine. The officer s searched Arango and did not find the $50 that they had given her to complete the transaction.

Shannon testified that he later presented the case to the Maury County Grand Jury

for its

cons ideration. He explained that he did not arrest the Defendant at the time of the transac tio n because if he had done

so, he wou

ld not have

been ab le to use Arango as a confidential informant-3-

again. Shannon reported that the Defendant was arrested on Nove mber 30, 1999, after the Maury County Grand Jury

returne d an indic tment ag ainst him. Sh annon sta te d that after his arrest, the Defendant

was read his Miranda rights and was intervie wed. The i nterview was videotaped and audiotaped.

Shan non testified that during the interview, the Defendant ne ver claimed to ha ve had a romantic relationship or sexual intercourse with Arango. He also te stified th at the Defendant didnot tell officers during his interview that Arang o had threatened to accuse him of rape unless he procured drugs for her. According to Shannon, the Def endant in no way

claimed that he had been

compelled to make a drug sale. Shannon further testified tha t he did not believe that the Defendant told officers that his arrest was a result of a conspiracy involving other officers on the police force. According to Shannon, the Defendant instead told officers that he had been drinking, that he did not remember the transaction, and t

hat he did

not even kno w the gi

rl who met

him in the Sh oney ’s parki ng lot. Shannon stated, however, that the Defendant later admitted that

he knew Arango as a per son who passed th rough th e McDona

ld’s par king lot.

Shan non Allen testified that she worked for the City of Columbia Drug Task Force. She stated that her

gener al duties included f

iling pa perwor k, ty ping, a nsw ering phon es, and general accounting. She reported that she had tra nscribed the audiotapes in this case.

The transcriptions of the recorded convers ati ons between Arango and the De fendant on September

24 and 29, 1999 were introduced as an exhi bit at trial . During the conversation on September

24, 1999, the Defendant is quoted as say ing: “Now I’m

gonna trust y ou now, don’t you goddam n sell me out. I’ll f__king kill you. I ’ll kill you. I ’ll never sell to you aga

in. Well I’m not selling to you[;] I’m just kinda the middle man.” Dur ing the conversation on September 29, 1999, the Defendant, presumably commenting about the cocaine, is quoted as follows: “It’s good [’]cause, I had some that he sold my sister not to[o] long ago.” Durin g this conve rsati on, he also t old Ar ango that the source of

the coca ine is “closely connected with [him] and someone in [his] family.” He offered to “hook [A

rango ] up with” the source and stated, “I ’ll talk to

him and se e if

I can’t hook you up with like a [. . .] bigger wad . . . .” The

Defend ant furth

er infor med Arango to “put [the cocaine] on a . . . joint” to “get a good buzz going.”

Donna Flowers, a forensic chem ist emp loyed by

the Tennessee Bureau of I nvestigations (T.B.I.) Crime L aborato

ry in Nas hvi ll e, t est ifi ed t hat she had bee n em pl oyed by th e T. B.I. for twelve ye ars. She stated that she analy zed the s ubstan ce whic h was tra nsferr ed from th

e Defe ndant to Arango in this case. She reported that the substance was cocaine, a Schedule II

controlled substance, and she st ated tha t it weighed 0.4 g

rams.

William Dole, an employee of the Maury County Sheriff’s Depa

rtment, testified that he was assigned to the Drug Task Force. He repo rted tha t he made a videota pe of the transaction in

this case that took place in the Shoney’s pa rking lot. He stated

that at the time, Ag ent Tommy

Goetz waswith him. Dole testified that after the transaction, he c opied the videotap e that he

had rec orded on

his Sony 8mm video recorder onto a VHS tape so that it would be easier

to view. He stated that he had-4-

been unable to

locate the original 8mm tape on the night prior to trial; however, he maintained that the VHS tape w as a true

and accurate c opy

of the or iginal ta pe and tha

t it depict e d what he had witnessed. The tape was then admitted into evidence.
Jennifer Arango testified that she was twenty-one years old a t the time of trial and that she

was twenty y

ears old in September 1999. She stated that she was divorced and had a thr ee-y ear-ol d daughter. She testified that in September 1999, she was workingin a caf eteria at the Sat urn plant

. Arango testified that she was twice caught selling mar ijuana to Officer Shannon in 1999. She stated that Shannon offered

to drop all charg es aga

inst her if she ag reed to w ork for h

im. She stated that she was paid $50 for her work in the Defenda nt’s case. She also reported that she was not being paid to testify in court.
Arango testified that she met the Def endan t when he worked as a security guard at McDonal d’s. She stated that she and h er friends often drove through the parking lot, and she testified that

she ofte n spoke with the Defendant while she was there. She maintained tha t she never datedthe Defe

ndant or e

ngag ed in sexua

l relatio ns with him. She also ma intained that s he nev er visited the De f

endant’s house and that he never visited hers. When asked whe ther the subject of drugs arose

during her conversations with the Defenda nt, Arango replied, “[W]e talked a bout just smoking [ma

rijuana ] and he ha

d mentione d that him [sic ] and a fr iend used to go out t

o Nashvill e and hangout and smoke and drink.”
Arango recalled that

she mentioned the Defe

ndant’s n ame to Of

ficer Sh annon in la

te Augu st
or early Septembe

r 1999 after he asked her whether she knew of any one else who sold drugs or had offered them to he

r. She sta

te d that she was aw are at th e time tha t the Def endant ha d previou sly been a police officer. She also stated that she believed the Defendant was a drug use r, rather than

a drug de aler. A rango testified that Shann on instructed her t o contac t the Def

endant, a nd a coup le of nights later, she drove through the McDona ld’s parking lot

and spoke

withthe Defendant, try

ing to obtain marijuana. According to Arang o, the Defendant told he r “he’d work o n it. ” Arango testified that she a sked the D efenda nt how she

could contact him, and he

gave her his pager number.
Arango stated that she and the Defendant later arrang ed to meet on September 24, 1999 at McDonald’s so that she could buy an ounc e of marijuana. She rec al led that she first contacted Officer Shannon and then went

to the Drug Task Force off ice, where her car wa s searched and where she was wired. She stated that she was provided with $100 to make her pu rchase. Arang o then drove to McDonald’s, followed by undercover officers, and met the Defendant, who got into her car. Arango testified that the Defendant told her that the m an wh o was to ha ve supplie d her with marijuana had been to McDonald’s and had already left. A tape of this meeting was play ed for the jury.

A tape of the transaction that led to the Defendant’s a rrest wa s n ex t p la yed fo r t he ju ry. Afterw ards, Arango commented on the tape. She testified that on September 29, 1999, shemet the Defendant

in a Shoney’s parking

lot, where he gave her a

bag of cocaine in exchange for $50. She stated that as the Defendant handed her the bag , he told her, “It’s g ood because I ha d some that

he-5-

sold my sister . . . .” Arango testified that following the tran saction, she retu

rned to the Drug

Task Forceoffice, where the wire that had been previously placed in her car was removed. Arango stated that she had never

bought drugs from the Defenda nt before September

29, and she denied that she coerced the Defendant in any way to make the

sale on September 29.
Following Arango’s testimony, several witnesses testified on the Defendant’s behalf. Mike Pr in ce, the Defendant’s friend and former supervisor at McDonald’s, testified that the Defendant had

no propensi

ty to use or sell illegal drugs. He stated that he believed that the Defendant’s recorded conversations with Arango appeared to be mer ely “fun c onversations” and explai ned that the Defendant “likes to carry on a little bit.”

Cordell McKissac

k, a polic e offic er with

the Spring Hill Police Department, testified that he and the Defen dant for merly worke d as partners on the same shift. He testified that he saw no inclination for th e Defen dant t o use o r sell ille gal dru gs during t he time that they worked tog ether. He stated that

when he and the Defendant “wer e messing around,” the Defendant spoke in a similar

manner to the way he

had spoken in his recorded conversations with Arang o, and he stated that the Defendant

had a good knowledge fr om his experience as a police officer of how drug dealer s talk and how drug transactions occur. However, he also admitted that at least p ortions of

the tran scripts of the Defendant’s recorded conversations did not appear to be jokes. Finally , McKissack testified th at he was aware that a fellow police offic er had engage d in an extramarital affair with the Defendant’s wife and that the Defe ndant and his wife had obtained a divorce.
Kimberly Ducket t test ified that s he was e mplo yed as a bil ling s pecialist byFamily Health Group. She stated that she had known t he Defendant for three to four y ears and reported that she

was the Defendant’s platonic roommate from 1998 until 1999, at the time of

his arrest in this case. Duckett testified that she never

observed any

inclination on the Defendant’s part to use or sell illegal drugs, and she stated that she was shocked by his arrest. She also testified that the Defendant “bullcrapped a lot, especially if he was trying

to pick up a girl.”

RichardFarris, an employee of First Farmers and Mer chants Bank, testifi ed t hat he had known the Defendant since elementary school. He stated that to his knowledge, during the period

surrounding the Defen dant’s arrest, “[t]here was nothing . . . to indicate . . . that he was using or selling drugs.” Farris testified that he was shocked by

the Defendant’s arrest.
Jerry Kennedy, a

n automobi le dealer, t estified that he had known the Defendant since the Defendant’s birth

and state d that he w as friends with both of the De fendant ’s pare

nts. He stated that nothing that he knew about the Defendant would lead him to suspect that the Defendant was using

or selling illegal drugs. He also testified that he was shocked by the Defendant’s arrest. Kennedy stated that the Defendant “can bull pretty good.”
Tommy Log ue, the D efenda

nt’s cous in, testif

ied that he had kno wn the De fendant his whole life. He state d that he c ould not “t hink of a t ime that [he ] would

have suspected that” the Defendant

was using or

selling drugs. When quest

i oned aboutthe content of the Defendant’s recor ded-6-

conversations with Ara

ngo, L ogue sta ted, “[The

Defend ant] just rece

ntly I guess, got a divorce and . . . talking with a female, you might talk any kind of c rap to, you know, move a long.”

Bec ky Logue, the De

fendant’s sister, testified that she was an employ ee of Saturn. Sh e maintained that notonly did she not suspect her brother of using or selling drug s, but she also knew “how against [drugs] he’ s been.” She stated that she had never used cocaine, that no one had recently sold he

r cocaine, and

that she d

id not know

of any one in the drug business. She reported that she was th

e Defe ndant’s o nly

natural sister and that

althoug h the Def endant a lso had ste

p-sister s,
none of themli ve d i n M au ry C ou nt y. She stated that she was shocked by the Defendant’s arrest and thou gh t it must have been a mistake. When questioned about the transcripts of the Defe ndant’s conversations withArango, the Defendant’s sister state d, “It sounds like him goofing of f is what it sounds like.” She also testified that during the conversations, the Defe ndant ap peared t o be “[p]laying a big shot, trying to impress somebody .”

Christie Masterso n testifie d that she was the D efenda

nt’s gir lfrie nd and tha

t she had been dating the Defendant “off and on” for almost two years at the time of trial. She stated that she never observed any beha vior on the Defendant’s part that would have led her to suspect that he was using

or selling drugs. Masterson testified that at the time of the transaction, the Defendant “wa s going throu gh a lot of problems . . . because of the divorce and the affair that his wife and former partner had had,” and she stated that the Defendant wa s under a great deal of stre ss.

The Defendant testified that he was thirt y-five y

ears old and that he was born in Maury Co un ty. He stated that he had served in the United States Air Forc e for nine year s and three mo nths, that he had been h on or ab ly d ischarged from service, a nd that he was a sergeant when disc harged. He testified that after serving in the United States Air Forc e, he returned to Columbia

withhis wife and began working as a police officer for the Spring Hill Police Departm ent. He stated that he workedas a patr

olman fro m 1995 until 1999, when he resigned from the police de partment. He stated that he r

esigne d becau se his wife bec ame roma ntically involved with another police officer withwhom he worked and became preg nant. He testified that

he filed a co mplaint wit h his departm ent, “rece ived no co ncern a

t all from the depa rtment,”and dec ided he no longer wished to be part of the department.

The Defend ant testif

ied that he and his w if

e divorc ed in 1999 . He rep orted tha t after h is divorce, he “[b]asic ally

fell apart.” The Def

endant te stified th at he and his wife h ad a five -y ear-ol d son, of which they maintained joint custody. He also testified tha t his wife gave birth to a child by his former co-worker shortly after their divorce. He indicated that he be lieved that members of the Drug Task Force knew the police office r with whom his wife had had an affair and may have initiated the undercover drug transaction to prevent him from obtaining custody of his son.

The Defendant

reported that after leaving the police force, he worked for a short time selling cars, and he also worked part-time as a security of ficer for McDonald’s. The Defe ndant testified that he first met Jennifer Arango while he was selling c ars because she bought a carfrom one of his coworker s. He state d that he r emember ed her because

she was “an

attractive young

lady.” He

recalled-7-

that ap pr ox im at el y a

mo nth later, Arango drove throug h the McDonald’s parking lot, where he worked, an d t he y spoke br iefly. The De fendant stated that Arango and others of ten “cruise[d] through” the parking lot. He testified that Arango told him that she was twe nty-three y

ears old and that she had a young

daughter. He stated that he and Ara ngo discus sed their children and the Defendant’s relationship with his wife.

The Defendant admitted that he had tried marijuana once in high school, but he denied ever using drugs afterwards. He re ported that he did drink alcohol. He stated that he was aware t hat Arango smoked cigarettes and d rank alcohol . He said that he sometimes saw Arango at a loca l nightclub and that she had invited him to meet her there on occasion after his divorce. The Defendant

testified that on one occasion when he saw Arang o at the club, she asked him if he smoked marijuana, and he told her that he “didn’t really care for it.” He state d that she told him that she smok ed mari

juana . He al so tes tifi ed tha t Aran go had asked him a few times if he knew where she could get

marijuana, but he ma in ta in ed th at he to ld he r, “I d on ’t kn ow wh er e yo u c ou ld ge t a ny. I’m not familiar with any body that’s g ot any around he re.”

The Defendant testified that after meeti ng Arango at the nightclub one evening, they left the club togethe

r at appr oximately 1:30 a.m. and went to his house. He claimed that while at his house, they engaged in consensual sexual intercourse and then went back to the club. He sta ted th at Aran go appeared to have been“drinking quite a bit.” The Defendant claimed that a few da ys later, he a

nd Arango again

had sexual intercourse. He stated that he encountered Arango while he was “driving around,” and they drove

to some property owne d by his former wife’s p arents, where they again had consensual intercourse. The Defendant testified that h e beli eved Ar ango began t o ask h im for drugs at some point before they had intercourse a second time.

The De fe nd an t s ta te d t ha t a ft er dr iv in g w it h A ra ng o t o t he pr op er ty ow ne d b y his former wife’s parents , he next sa w Arang o at McDonald’s . He said she told him that her friend needed

some “s-h-i-t,” meaning marijuana, bec ause her friend had “a man . . . that she had takensome d rugs from and . . . he had found out about it and he was real dangerous a nd she was scared of him . . . .” The Defendant

reported that Arango told him “she neede d it really bad and she didn’t want anything to happe n to h er frie nd.” H e also claim ed tha t she t old h im, “If you d on’t ge t me so methi ng, I’ll go to the police and say y

ou raped me those nights that we had sex.” He testified that at the time, his child custody suit was pen ding. The Def endant testified that he did not contact the police about Aran go’ s threats because he was afra id he would lose custody of his child and because he “didn’t trust the police at the time.” He admitted that Arango did not make any such thr

eat duri ng their recorded conversations.

The Defend ant testif

ied that in response to Arango’s threats, he initially stalled, not knowing what to do. He stated that Arango showed up at McDona ld’s three times on Sep tember 24 , 1999 looking for drug s, and he

told her that she “just missedthe dealer,” who had left because Arango was late. He stated that on September 29, 1999, he went to Alabama for a weekend trip. He reported that when he returned, he found four calls from Arango on his “[c]aller I D.” He claimed that he did not recognize the number and stated that he there fore called the number. Arango answered and asked-8-

him if he had “gotte n her any thin g.” He testified that he told her he had not, and he stated that Arango again pre ssured him to obtain drugs for her.

The Defendant stated that he eventually obtained a small amount of coca ine from his neighbor, but insisted that he did not pay for the coc aine. He explained that his neighbor had gotten it for no cost, and she let him have it free of cost. Although the Defendant admitted that he gave the cocaine to Ara ngo, he maint ained that h e did n ot cha rge Arango for the cocaine. He admitted that he knew it wa s a crime

to possess or sell cocaine. However, he stated, “ I just felt like I didn’thave a choice.” The Defendant testified tha t after the transaction, he did not hear from Ara ngo again.

When asked about the la nguage he usedduring his recorded conversations with Ara ngo, the Defendant

testified that he had learned to talk like a drug de aler when heworked as a police officer. When aske d about hisrecord ed threa t to kill Ara

ngo, he stated, “ I just

ki d ar oun d l ik e th at. It

was like a metaphor , it just flowed . I c ouldn’t ha ve even told y ou I s aid it.” Whe n asked a bout his refere nce t o his “sister” during the conversations, the Defe ndant testified, “I just used the word ‘sister’ because . . . of just try ing to convince her it wa s okay . I jus t used ‘sis ter’ I guess a s a metaphor, what ever, a

fake name.” He stated that none of his sisters used drug s. The Defendant further explained that

his statement that the source o f the coc aine wa s “close ” to one of his family members was untrue, stating, “I didn’t want [Arango] to think that I was . . . going to leave there and go stra ight t o the p olice . . . .” He als o exp laine d that he tol d Arango that he could “hook [her] up with

. . . a [. . .] bigger wad” because he thought Arang o and his source would “eventually . . . work together . . . , and [Arango would] leave [him] alone.” He stated that he had lear ned from his neighbor how to lace a marijuana c igarette with cocaine.

The Defend ant mainta

ined that at the time

of the tra nsaction in this case, he was neither using

nor selling drugs. He stated that on the day following

his arrest, he went to Baptist Centre Care and took a drug te st t o show tha

t he was n ot using d

rugs. H e stated

that he ha

d applied for a job as a police officer in Columbia and that at the time of his arrest, h is applicat ion was pending. The Defendant testified, however, that immediately after his arre st, the police depa rtment re moved his

name from the hiring list. He stated that he knew that he would be required

to submit to a

drug te st as part of his application process and therefore could not take drugs.

Fi na ll y, t he Defend ant testified that after he was arrested, he was interrogated at the Drug Task Force office. He

admitted th at he di d n ot an sw er so me of th e q ue st io ns he wa s a sk ed tr ut hf ul ly. He stated that

he told the officers that he “didn’t remember any thing” and that he “may

have been drinking.” He explained that he d id so because he did not have an attorney and he “felt like [the office rs] were try ing t o dra g som ething out

of [hi m] p rior to [his] getting any leg al advice.” He stated that he was unaware that his interview was recorded. In addition, the Def endant admitted that he lied in court in a prior hearing by telling the court that he had obtained the cocaine from an area known as East H

ill. He expl ained tha

t he lied b ecause

he “was sc ared wh at would h appen to [h im and his son] if [he] revealed the na me” of his actual source. The Defendant testified that he w as aware that perjury

is a crime.-9- I. EVI DENCE CONCERNING THE SOURCE OF THE COCAI NE
A. Admissibility of the Evidence

The Defend ant first

argues that the

trial court erred by

refusing to allow evidence conce rning the source of the cocaine which he transferred to Jennifer Arango. During redirect examination, the Defendant

testified that he possessed photographs taken during the morning hours on New Year’s Eve 2000 of his neighbor

and the source of her drugs lea ving his neighbor’s house. He testified that the photographs depicted the source’s car and license plate. He testifie d that the

photogr aphs also depicted his neighbor looking both way s as the source left her house.
In a jury -out

hearing following

this testimony, the defense sta ted that the Drug Task Force maintained a file regarding the sour ce of cocaine, who was “one of the larg er drug dealers, cocaine dealers in Columbia ,” and the State con

firmed th at the fil e existed. The def ense att empted to introduce the photog

raphs and the file

into evide

nce. I t also stat ed that it wish ed to subpoena an agent from the Drug Task F orce to testify concer ning the file. The State argued that the e vidence should not b e introdu ced bec ause the photographs did not confirm that a dr ug tran saction a

ctually occurred on the date that the photographs were taken, stating, “[T]he pictures do nothing more than to show that [the source ha s] gone in and out of

[the neig hbor’s] house.” The Defendant admitted during the jury-out hea

ring that he never actually saw the source providehis neighbor with cocaine, but he stated, “I was on the phone with her when she said he brought me some stuff.”

The defense

argue d that it wis hed to intr oduce the photogr aphs bec ause the

St ate had attac ked the Defendant’s credibility , emphasizing that the Defendant had presented three different versions of where he had obtained

the cocaine in this case. The Defendant testified that he first told officers he did not know where he had gotten the cocaine and that he then told the court that he had obtained it from someone in the East Hill area. However, at his trial, the De fendant maintained

that h e obtained the cocaine from his neighbor, who in turn had obtained it from the drug dealer depicte d in the photographs. The Defendant thus soug ht to introduce the photographs to corrobo rate hi s testimonyat trial concerning the source of the drugs. The court ruled

agains t the D efenda nt, s tati ng, “We’re going too far afield in this case.” The defense then requested that a co py o f the Dru g Task Force file concerning

the alleged source of the coc aine be filed under seal.

The Tennessee Rules of Evi dence state that all relevant evidence is gene rally admissible. Tenn. R. Evid. 402. Relevant evidence is defined as “evidence having any

tendency to make

the existence of

any factthat is of c onseque nce to the determin ation of th

e action more pro bable or less probable than it wou

ld be witho

ut the evi dence. ” Tenn. R. Evid. 401. Howeve r, “alth ough re

levant, evidence may

be excluded if its probative value is substan tially outweig hed by the dang er of unf

air prejudice, confusion of the issues, or misleading the jury , or by consider ations of undue delay , waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. As a general matter, the admissibil

ity of the evidence rests within the discretion of the trial court. State v. Sheline , 955 S.W.2d 42, 46 (Tenn. 1997).-10-

We conclude that the tr ial court did not abuse its discretion by re fusing to admit evidence

co nce rning the initial source of the cocaine that the Defenda nt later provided to Arango. The Defendant

was convicted of the casual exchange of a contro lled su bstance. The source of the controlled substanc e is irrelevant a s to the De fendant ’s guilt. Further

more, th e relevance of the evidence with regard

to the Defendant’s credibility is, at best, questionable. The photographs and Drug Task For

ce file, viewed in

a light mo st

favorable to the Defendant, merely show that a known drug dealer was seen walking in and out of the Defendant’s neighbor’s home. No dir ect evidence

was offere d to show th at the de aler ev er sold c ocaine t o the Def endant’ s n eighbor or that the neighbor later provided the Defendant with the cocaine. The evidence was simply not probative of any determin ative issu e in this ca se. Assuming, how ever, th at this cir cumst antial evidence was relevant and probative, we conclude that “its probative value was substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury , or by considera

tions of undue delay, wa ste of time, or needless presentation of cumulative evidence.”Tenn. R. Evid. 403.

B. Offer of Proof

The Defend ant fu rther argues t hat th e tria l cour t erred by denying him the oppor tunity to make an offer of proof concerning this issue. Specifically, he ar gues th at he should have been allowedto subpoen a an ag ent from t he Drug Task For ce to testify conce

rning the file maintained by the Drug Task Force on the a lleged source of the cocaine . He also contends that the trial court should have allowed him to place the file under seal in the record for appellate review. The State counters that the Defendant was indeed allowe d to make an offer of proof conce rning this issue.

The record reveals that the trial court did allow the Defendant to make a n offer of proof concerning this issue. As we hav e previously stated, f ollowing the Defe ndant’s t estim ony on re direct examination that he possessed photographs of the source of the cocaine leaving his neighbor’ s home, the trial court held a hearing outside of the pre sence of the jur y to determine the a dmissibility of evidence concerning this issue. During the jury-out hea

ring, the Defendant was allowed to testify

on the rec ord abou

t his knowledge of

the source’s involvement as a drug supplier with his neig hbor, and he admitted that he had not seen the source actually transfer any

cocaine to his neighbor. The contestedphotographs were also marked f or identif ic ation only during the he aring and are thus included in the record on appeal. However, the D efendant was not allowed to make an offer of proof concerning the Drug Task Force file on the alleged source of the c ocaine, and he was not allowed to calla Drug Task Force a gent to testify regar ding the file. Although the

State adm

itted that the file existed, neither party

was privy

to the actual contents of the file. The trial court ruled that to allow the defense to explore this evidence would be “going too far afield” from relevant matters.

“[C]ourts are re quired, in approp riate circumstances, to allow offers of proof when evidence is excluded s o as to ena

ble consideration of the issue on appeal.” Alley v. State, 882 S.W.2d 810, 815-16 (Tenn. Crim. App. 1994) ; see also State v. Goad , 707 S.W.2d 846, 852 (Tenn. 1986) (stating that “[i]n order for

an appellate court to review a rec ord of excluded evidence, it is fundamental that such evidence be placed in the record in some manner”) . A second purpose for an offe r of proo f is to “inform[] the trial court wh at the pa rty intends to

prove so that the court may r

ule intelligently.”-11-

Alley
, 882 S.W.2d at 815. Appellants who challenge rulings excluding evidence must make an offer of proof “unless the substance of the evidence is otherwise apparent.” Id. at 815.

An appellate court may

find that a trial court erred in excluding evidence only if a party’ s substantial rights were affected a nd an offer of proof is contained in the rec ord. T enn. R. Evid. 103(a)(2). This court has stated that “[i]n circ umstance s in which i t is obvious from the record that the proffered evidence could, under no circumstances, be relevant to the issues, a trial court’s refusal to grant an offer of proof is not er ror.” Alley , 882 S.W.2d a t 816. “However, if the obvious incompetence or irrel evance is not rea

dil y apparent fr om the record, it is error to exclude any

reasona ble offer w

hich demo nstratesthe rele vance a nd gene ral im por t of the excluded evidence.” Id.

We conclude

that the tr ial cour t did not err by re

fusing to allow the Defendant to place a copy

o f the file maintained by the D rug Task Force on the alleg ed source of the cocaine u nder seal fo r appella te purposes and by r

efusing to allow the Defendant to subpoena a

Drug Ta sk Forc e age

nt to testify concerning the contents of the file. As we have previous ly s tated, the conten ts of the f ile are irrelevant as to th e Defendant’s guilt or innocence . Furthermore, as we have noted, the r elevance of this evide

nce with r egard to the Def

endant’ s credib ility

is, at bes t, questio nable. E ven if the file had demonstrated that the alleged source wa s a con vic ted drug dealer and even if the file had established a strong

link between the alleged s ource a nd the Defendant ’s neighbor, it would not have substantiated the Defendant’s claim that he obtained the cocaine in this case from his neighbor. The fi le was not a file concerning the Def endant’s neighbor, but rather a per son with wh om she wa s allegedly acquainted.

Fi na ll y, we co nclude tha t even assuming that the trial court did err by refusing to allow evidence concerning the source of the cocaine which the

Defend ant tr ansfer red to Jenn ifer Ar ango
or by refusi ng to allow an offer of proof reg arding the Drug Task F orce file, any

such error was harmless

. See Tenn. R. A pp. P. 36(a ); T enn. R. Crim. P. 52(a) . The Def endant a dmitted to f

acts constituting a casua l exc hange of a controlled substance, see Tenn. Code Ann. § 39-17-418 (stating that “ [i]t is an offense for a person to knowingly possess or casually e

xchange a control le d substance”), and the jury convicted him of the c asual exchange of a controlled substance. We are unconvinced

that admission of the contested evidence would have affected the result of the trial on the merits, see Tenn. R. Crim. P. 52(a), or that the Defendant’s substantial rights were affected by the trial cou

rt’s ref usal to all ow a fur

ther off er of pr oof conc erning

the Drug Task For ce file. See Tenn. R. Evid. 103(a).

II . SENTENCING

The Defendant next argues the trial court er red by fa iling to grant him full pro bat ion. As previous ly

stated, the trial court se ntenced the Defe ndant to eleven mon

ths, twent

y- nine day s’ incarceration and suspended all but forty -five day s of the sentence. The crime of which t h e-12-

Defend ant was con victed in this case is a Class A misdemeanor. See Tenn. Code Ann. § 39-17- 418(c). An appro

priate se ntence f or a ClassA misdemeanor is “not greater than eleve n . . . months[,] twenty-nine . . . day s . . . , unless otherwise provided by statute.” Id. § 40-35-111(e)(1).

When a criminal defendant challenges the leng th, range, or

manner of service of a sentence
, the reviewing cour

t must conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d). A trial court needonly consider the

principles of sentencing and the enhancement and mitigating fa ctors in order to comply with the leg islative mandates of the misdemeanor sentencing statute. Id. If our review reflec ts that the trial court followed the statutory sentencing procedure, that t he court imposed a lawful sentenc e after

having given d ue consid eration and prop er weig

ht to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are a dequately supporte d by the record, then we may

not modify the sentence

“even if we would have preferred a different result.” Statev. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

Misdemeanor

sentenc ing is co ntrolled b y Te nnessee Code Anno tate d § 40-35 -302, which provides in part that

the trial court sha ll impose a

specific sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act. Tenn. Code Ann. § 40-35-3 02(b); State v. Palmer
, 902 S.W.2d 391, 394 (Tenn. 1995). Misdemeanor sentencingis designed to provide the trial court with continuing jurisdiction and a great deal of fle xibility. Sta te v. Baker , 966 S.W.2d 429, 434 (Tenn. Crim. A pp. 1997). The misdemeanant, unlike the felon, is not entitled to the presumption of a minimum sentence. State v. Cre asy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). In determin

ing the p ercent

age of the sente nce to be served in actual

confine ment, the court must consider enhancement

and mitigating factors, and a percentage of not g

reater than seventy -five percent of the sentence should be fixed for service, after which the defendant becomes eligible for “work release, furloug h, trusty status and related r ehabilitative programs.” Tenn. Code Ann. § 40-35-302(d). The court should not impos e such perc entages arbitrarily

. Id. In misdemeanor sente ncing, a se parate

sentencing hearing is not mandatory , but the trial court is required to allow the parties a reasonable opportunity to be heard on the question of the manner in which it is to be served. Id. § 40-35-302(a). The Tennessee Supreme Court has he ld th at in m isdem eanor s enten cing,

a trial court is not required to place specific findings on the r ecord. State v. Troutman
, 979 S.W.2d 271, 274 (Tenn. 1998).

The Defendant more specifically argues that he

should have been granted full probation. The decision to grant or deny

probation lies within the discretion of the trial court. See Stiller v. St ate , 156 S.W.2d 617, 6 20 (Tenn . 1974). I n determ ining wheth er to gr ant or deny pr obation, the trial court may conside

r the circumstances of the offense; the defendant’s criminal rec ord, background and so ci al hi st or y; the defendant’s phy sical and mental health; the deterrent effect on other c riminal

ac ti vi ty; and the li

kelihood t hat proba tion is in the

best inter ests of both the public and the def endant. Statev. Parker , 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The defendant bears the burden of establishing suitability

for prob ation. Te

nn. Code A

nn. § 40-3 5-303(b) ; Ashby , 823 S.W.2d at 169.-13-

A transcript of the se ntencing hearing is not inclu ded in the

record . Howeve

r, pursua nt to Rule 24(c) of the Tennessee Rules of Appellate Proc edure, the Defend ant filed astatement of the evidence presented at the sentencing hear ing. According to the s tatement, the trial court applied mitigating factor (13), the catchall factor , but the trial court’s reasons for apply ing this factor are unclear from the record. See Tenn. Code Ann. § 40-35- 113(13). The court also applied enhancement

factor (15), which provides in part that the “defendant

abused a position of public or private trust . . . .” Id. § 40-35-114(15). It appea rs that the court applied enhancement factor ( 15) because, according to the state ment o f evi denc e, th e cou rt not ed th at the

Defe ndan t was “an e

xpolice officer who broke the law.” Ac cording to the statement of the evidence, the trialcourt al so basedits denial

of proba tion on the

Defend ant’s “a

ttitude, hi s lack of

remorse , and his f

ailu re to accept responsibility for his actions.” The cour t is quoted

in the state

ment of evidence

as follow s: “If the Court had heard one smidgen of remorse or one smidgen of acceptance of responsibility from Mr. Logue, he w ould walk out of the courtroom on full probation.”
Having reviewed

the record, we conclude that the trial court erred by

applying e

nhancement factor (15) in this case. See Tenn. Cod e Ann. 40- 35-114(1 5). The a pplicatio n of this fa

ctor re quires, first, a finding that the defendant occupied a position of either public or private trust a nd, second,

a f inding that the defendant “abused” that position. Id. ; see State v. George Dennis Fields , No. 01C01-9801-CR-00031999, 1999 Tenn. Crim. App. LEXI S 444, at *15 (Tenn. Crim. App., Nashville, May 6, 1999). Although this Court has noted that a police officer occupie s a position of public trust, see George De nnis F ields , 1999 Ten n. Crim. Ap

p. LE XIS 44 4, at **14 -15; State v. Dockery
, 917 S.W.2d 258, 262-63 (Tenn. Crim. App. 1995), overruled on other grounds by Troutman , 979 S.W.2d a

t 274 n.3, th

e recor d revea ls that the Defend ant was n ot a

police officer at the time of the crime in this case.

However the record

justifies the denial of probation on other grounds. “A defendant’s lack of candor, credibility , and willingness to accept responsibility for his crime are re levan t considerations in deter

mi nin g a def

endant’ s potentia

l for reh abilitatio n, and its l ack ther eof is a proper consideration in determining whether probation or conf inement is appropriate.” State v. Carlos Bierner , No. E200 1-01857- CCA-R3-CD , 2002 Ten n. Crim. Ap

p. LE XIS, a t *18 (Tenn. Crim

. App., Knox vill e, Sep t. 13 , 2002 ) (cit ing State v. Z eolia , 928 S.W.2d 457, 463 (Tenn. Crim . App. 19 96 ); State v. Dowdy , 894 S.W.2d 3 01, 306 (T enn. Crim. App. 1994 ); State v. Anderson , 857 S.W.2d 571, 574 ( Tenn. Crim. App. 199 2); State v. Brya nt , 775 S.W .2d 1, 6 (Tenn. Crim. App. 1988)). Here, the trial cou rt f ound that the Defendant was untruthful and unwilling to acce pt responsi bility for his actions, and the r

ecord su pports the se findin gs by

the trial court. I n fact, the Defendant

admitted at trial that he had lied during a previous court proc eeding. Furthermore, we

no te that the trial court apparently gave these findings gr

eat weight because it stated that if t h e Defendant

had shown “one smidgen of remor se or one smidgen of acceptance of responsibility,” the court would have granted him full probation. We therefore conclude that the tr

ial cour t did not abuse its discretion by deny

ing full probation in this case.-14-

Accordingly , we AFFI

RM the judgment of the trial court.

___________________________________ ROBERT W. WEDEMEYER, JUDGE