# FILED April 8, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE NOVEMB ER SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9711- CC-00537 ) Appellee, ) ) ) ROBERTSON COU NTY VS. ) ) HON. ROBERT W. WEDEMEYER TONY A. BAKER, ) JUDGE ) Appe llant. ) (Direct Appeal- Sale of Control led ) Substance)

FOR THE APPELLANT : FOR THE APPELLEE : JOE R . JOHN SON , II JOHN KNOX WALKUP 509 W est Court Sq uare Attorney Generaland Reporter Springfi eld, TN 37172 DARYL J. BRAND Senior Counsel 425 Fifth Avenu e North Nashvill e, TN 37243 JOHN CARNEY Distri ct Attorney General DENT MORRISS Assistant Distri ct Attorney Main Street Springfi eld, TN 37172
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

# OPINION
On Februa ry 11, 199 7, a Robe rtson Co unty jury conv icted Appell ant Tony A. Baker of two count

s of sell ing cocaine. After a sentencing heari ng on April 11, 1997, the tri al court sentenc ed Appe llant as a Rang e II multiple offender to a term of eight ye ars im prison men t for eac h cou nt, wit h the sentences to run consecu tively. Appellant challenges both hi s convictions and his sentences, raising the fol lowing issues: 1) whether the evidence was suffi cient to support hi s convictions; 2) whether t he trialcourt imposed sentences of excessive length; and 3) whether t he trialcourt err ed when it i mposed consecutive se ntencing. After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

I. FA CTS

Delores Walton testified that o n June 28 and July 6, 1995, she was worki ng as a confidential pol ice informant for t he Nineteenth Judicial Dist rict Drug Task Force. On both days, Walton cal led Appellan t’s p ager number and when he called her bac k, she told him tha t she wanted to buy a “sixteenth.”

Walton testified that after she ca lled Appell ant on June 28, 1995, Appel lant cameto W alton’s ap artmen t and ask ed wha t she wa nted. W hen W alton to ld Appellant t hat she wanted a “si xteenth, ” Appellant placed a quanti ty of

cocaine on the table . When W alton recogni zed that t he amou nt was n ot a full “sixteen th,” she told Appell ant that s he would pay him $60 fo r the amount. Appel lant then placed some additionalcocaine on the table a nd W alton p aid him $80. Walton tes tifi ed that when Appell ant retrieved the additional a mount of cocaine, she-3-

could see that Appel lant wascarryi ng more cocaine than t he amount that hesold to her. Walton also testifi ed that she paid $80 to Appellant f or a “si xteenth” o f cocaine on July 6, 1 995.

Walton testified that a lthough she had known Appellant for sever

al years, she had n ever u sed d rugs w ith him at any ti me. Walton also test ified t hat when she purchased cocaine from Appellant on June 28 and July 6, 1995, Appellan t never ga ve any ind ication tha t he wan ted to use the coca ine with he r.
Agent William Stanton of the TennesseeBureau of Investigati on testi fied thatthe substance Walton obt ained fro m Ap pellant on June 2 8, 1995 , was .4 gra ms of cocaine base. Agent Stanton also test ified t hat the substance Walton obtaine d from A ppellant o n July 6, 19 95, was .5 gram s of coca ine base
. Appe ll ant

testi fi ed t hat

on J une 2 8, 1 995, he took somedrugs to Walton, she gave him $60, and he then lef t the resi dence. Appell ant also test ified t hat on July 6, 1995, he took some cocaine to Walton, she pa id him so me m oney for it, and he then left t he re sidence. Appel lant testifi ed that on bot h occasions, he believed that he an d W alton wo uld sm oke the cocaine togethe r.

II.SUFFICI ENCY OF THE EVI DENCE
Appellant

conte nds th at the e videnc e was insuffic ient to supp ort his convicti ons for two counts of sel ling cocai ne. We disagree.-4- When an appellant

challenges t he suffi ciency of the evidence, this C ourt is obliged to review that chal lenge according to certai n well-settl ed principles. A verdictof guil ty by th e jury, approved by t he trialjudge, accr edits th e testimony of the State’ s witnesses and r esolves all conf licts

in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994) . Although an accused is originally cloaked with a p resump tion of innocenc e, a jury verdictremo ves this presumption and re place s it with one o f guilt. State v. Tug gle , 639 S.W.2d 913, 914 (Tenn . 1982). Hence, on appea l, the burde n of proo f rests with A ppellant to demo nstr ate the insufficie ncy of the convicting evidenc e. Id. On appe al, “t h e [S]tate is enti tled to t he stronge st legi timat e view o f the evid ence as we ll as all reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere the suffic iency of t he evidence i s contested on appeal, t he relevant question for the reviewi ng court is whethe r any ra tio nal tri er of fact could have found the accused guilty of every el emen t of the offen se beyo nd a rea sonab le doub t. Jackson v. Virgin ia , 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789 , 61 L. Ed. 2d 56 0 (1979). In conducti ng our evaluat ion of theconvicti ng evidence, this Court i s precluded from rew eighing o r recons idering the evidenc e. State v. Morgan , 929 S.W.2d 380, 383 (Tenn. Cri m. App. 1996). Moreover, this C ourt may not substitute its own i nferences “f or those drawn by the tri er of fact from circumstant ial evidence.” State v . Matt hews , 805 S.W.2d 776, 779 (Tenn. Cri m. App. 1990). Finally, Rule 13(e) of the Tennessee Rulesof Appellate Pro cedure provides, “findi ngs of guilt in criminal actions w hether by the trial cou rt or jury shall be set aside if the eviden ce is insuffi cient to support the findings

by the trier of fact beyo nd a rea sonab le doub t.”-5- In this case, Appellant was convicted of two cou nts of selling cocaine . In orderto prove t hat these of fenses occurre d, the Sta te was required t o prove that Appellant

knowingly gave cocaine to W alton in exchan ge for mon ey. See Tenn. Code Ann. §§ 39-17-417( a)(3), (c)(2); 39-17-408(b)(4) (1997 & Sup p. 1998). Appellant

concedes that on both J une 2 8 and July 6, 1995, he pr ovided Walton with cocaine in exchange for money. Appel lant argues, ho wever, th at the evidence only supported convicti ons for casualexchange of a cont rol l ed substa nce. See Tenn. Code Ann. § 39-17 -418( a) (199 7) (“It is an offense for a person to . . . casually exchange a controlled sub stance.”). S pecifically, Appellant contends that thesewere casual exchanges because he al leges that only a sma ll amount of money was exchanged, only a smallamount of cocaine was involved, and Appellant bel ieved that he would be using par t of the cocaine himse lf. However, in State v. Carey , 914 S.W.2d 93, 96 (Tenn. Crim. App . 1995), this Cou rt stated tha t a “casual exc hange” can only o ccur “when the t ransfer of the controlled substan ce is ma de witho ut design .” In th is case , the Sta te’s evidence shows that on bot h June 28 and July 6, 1995 , W alton c alled A ppella nt’s pagernumber, Appellant called Walton on t he telephone, Walton told Appell ant thatshe wanted to buy a “sixteenth,” Appel lant responde d by bringinga quan tity of cocaine to Walton’ s residence, Walton paid $80 to Appel lant for the cocaine, and Appellant t

ook the money and lef t. Moreover , Walton testi fied that Appellant neverindica ted a d esire to use th e coc aine w ith her. T his evid ence clearly establi shed that the s ale of cocai ne on both occasio ns was by design and thus, was no t a casua l exchan ge. Id.
Appellant

also contends that the evi dence was insu ffic ient to s uppo rt his convicti ons because he alleges that it is obvious that Walton and another witness-6-

forthe State were no t telli ng the trut h during thei r testi mony. However, “ [t]he credibility of the wit nesses, the wei ght to be gi ven their tes timony, and the reconcil iation of conflicts in the evidence are matters ent rusted excl usively to the jury as the triers of fact.” State v. Cribbs , 967 S.W.2d 773, 79 3 (Ten n. 1 998). The jury obviously beli eved the State’s wit nesses, and a ny furth er revie w of the ir credibil ity i s foreclo sed.

This issu e has n o merit.

III . LENGTH OF SENTENCES
Appellant

contends tha t the trial court erroneou sly i mpo sed longer sentences than he des erves. We disagree.

“When reviewing senten cing issu es . . . incl uding the grant ing or deni al of probation and the length of sentence, t he appellate court shallconduct a de novo review on the record of suc h i ssues. Such revi ew shall be conduc ted with a presumption that the determinati ons made by the co urt from which the ap peal is taken are cor rect.” Tenn. Code Ann. § 40-35-401(d) (1997). “However, t he presum pti on o f correc tness which acco mpa nies th e trial co urt’s ac tion is conditi oned upon the aff irmative showing in the r ecord that the trial cou rt considered the sentencing principl es and all rele vant facts a nd circum stance s.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conduct ing our review, we must consider all t he evidence, the prese ntenc e report, the sentenci ng principles, the enha ncing and m itigating factors , argum ents o f coun sel, the defen dant’s statements, the nature and character of the o ffense, and th e defendant’ s potenti al-7-

forrehabilitation. Tenn. Code Ann. §§ 4 0 -35-103(5); 40-35-210(b) (1997 & Supp. 1998); Ashby , 82 3 S.W.2d at 169. “The defendan t has the bur den of demonstratingthat the se ntence is improp er.” Id. Becau se the record in this case indicates thatthe trial court properly considered t he sentencing principl es and all relevant fa cts and c ircums tances , o ur revi ew i s de novo with a presumption of correctness.

In th is case, Appel lant was convi cted of two counts of sel ling cocai ne, a Class C felony. See Tenn
. Code Ann. §§ 3 9-17-417(a)(3), (c) (2); 39-1 7-408(b)(4) (1997 & Supp. 1 998). The s entence for a Rang e II offende r convicted of a Class C felony i s between six and ten years. Tenn. Code Ann. § 40-35-112( b)(3) (1997). When both enhancement and mit igatin g factors a re applicable to a sentence, the court i s directe d to begin wit h the minimum sentence, enhance the sentence within t he range as appropri ate for t he enhancement factor s, and then reduce the sente nce within the rang e as ap propriate for the m iti gatin g factors. Tenn. C ode Ann . § 40-35-210 (e) (1997).
In imposing a sentence of eight yea rs for both of Appellant’s convi ctions, the trialcourt determined that enhancement factor ( 1) applied because Appellant had a history

of crimi nal convic

tions or criminal behavior in additi on to those necessa ry to establ ish the appr opriate sentencing range. See Tenn. Code Ann. § 40-35-114 (1) (1997). Th e trial court also deter mined that enhancement f actor (8) applie d bec ause Appe llant ha d a pre vious h istory of unwillin gnes s to co mply
w ith the con ditions of a senten ce involving release in to the com munity. See Tenn. Code Ann. § 40-35-114(8)(1997). I n additi on, the trial court found that Appe llant’s education, employment history, acceptance of responsi bilit y, and1 The record indi cates that the three convicti ons for sell ing cocaine wer e all Cl ass B felony con viction s. O nly two conv iction s we re ne ces sary in orde r to cla ssify A ppe llant a s a R ang e II m ultiple offender. Tenn.Code. Ann. § 40-35- 106(a)(1) ( 1997). Thus, Appel lant had a history of criminal convicti ons or criminal behavior i n additi on to those necessar y to est ablish the appropriat e sentencing range. -8- remorse were en titled to some weight as mitigators
. See Tenn. Code Ann. § 40- 35-113(13) (1997). I n fact, t he trialcou rt noted that if it ha d not b een fo r this mitigati ng evidence, the court would have imposed nine or ten year sentences.
Appellant

d oes not challenge the applicat ion of enhancement f actor (1)and we conclud e that it w as properly applied. Indeed, the record indi cates that Appellant

has three p rior conv iction s for the s ale of cocai ne and one prior convicti on for possessi on of cocaine
. 1 Si milarly , Appellant does not chall enge the applicat ion of enha ncem ent factor (8 ). We also conclude that thi s enhancement factor was properly

applied becau se the record indicates that Appell ant comm itted the offe nses in th is case w hile he wa s on sup ervised p robation
. Appellant

does ch allenge th e trial court’s fa ilure to apply mitigati ng factor (1), that Appell ant’s cri minal conduct neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-3 5-113(1) (199 7). However, this C ourt has previously held that this fac tor is inappli cable in cases involv ing the sal e of cocaine
. State v. Keel , 882 S.W .2d 410, 422 (Tenn. Crim . App. 1994 ). Even if this factor had b een applied , it would ha ve been entitled to little we ight. See State v. Hoyt E dward Carro ll , No. 03C01-9607-CC-00254, 1997 WL 457490 at *4 (Tenn. Crim App., Knoxvill e, Aug. 12, 19 97) (holdi ng that in cases invol ving drugs, mitigati ng factor ( 1) is entitled to li ttl e weight). Therefore, we conclude that the eight year

sentences are entir

ely appropr iate in this case. This issuehas no merit.2 At this time, it is unsettl ed whether Wilkerson applies t o all sev

en of the statutory cat egories for conse cutive se ntencing or only to the “d angero us offe nder” ca tegory. See State v. David Keit h Lane , No. 03C0 1-9607 -CC-0 0259, 19 97 W L 3320 61, at *6 (T enn. Cr im. Ap p., Knox ville, June 18 , 1997), perm. app. granted , (Tenn. 1998). However, as discu ssed below, our conclusion that cons ecutive sentences are appropriat

e in thi s case is the same under either int erpretat ion. -9- IV. CONSECUTIVESENTENCING
Appellant

contends tha t the trial court erred when it imposed co nsecutive sentencing. We disagree.

Consec utive sentencing is g overned by T enne ssee Code Annotated section 40-3 5-115 . Th e tri al court has the d iscretion to order co nsecutive sentencing if it finds that on e or mo re of the re quired sta tutory criteria e xist. State
v. Black , 924 S.W.2d 912, 917 (Tenn . Crim. App . 1995 ). Furth er, the c ourt is r equire d to dete rmine wheth er the c onse cutive s enten ces (1 ) are re ason ably related to the severity of the offens es committed; (2) serve to protect t he public from further criminal con duct by the offend er; and (3) are congru ent with general principl es of senten cing. State v. Wilkerson , 905 S.W .2d 933, 939 (Tenn. 199 5). 2

In imposi ng conse cuti ve sentencin g, th e tri al cou rt found th at Ap p ellant was an offende r whose criminal re cord wa s extens ive. See Tenn . Code Ann. § 40-35-115(2) (1997). I n additi on, the trial court also noted t hat Appellant had committed the offens es in thi s case while he was on probatio n fo r previo us convictions. See Ten n. Co de An n. § 40 -35-1 15(6) (1997 ). As pr evious ly stated, Appe llant’s criminalrecord consi sts of t hree pr ior con vic tions fo r the sale of cocaine and one prior convicti on forpossession of cocaine. I n additi on, Appellant admitted duri ng the sentenci ng hearing that he had been using il legal drugs for appro ximate ly s even years before h e com mitted the offenses in this case . We-10-

conclude that the evidencesupports a finding that Appell ant is an offender whose criminal re cord is exte nsive.

In this case, the tri al court made noexpress fi nding that the Wilkerson test was satisf ied. As prev iously noted, it is not clear whether the Wilkerson test appliesin this case. H oweve r, assum ing that Wilkerson does apply, we conc lude thatthe test is sa tisfied. First, t he reco rd indicates that consecutive s entences are nece ssary in order to protec t the pu blic from future c rimina l m isconduct on the part of Appel lant. I ndeed, Appellant was previousl y convicted of four cocainerelated offenses t hat were committe d over a peri od of approxima tely four years a nd he has be en convicted o f two more co caine-related offen ses that were committed while h e was on su pervise d prob ation. F urther , Appe lla nt admitted th at he used ill egal drugs for approxi mately seven years, even af ter he had partici pated in a drug-r ehabilitation program . This continuing disrespect for the law indica tes tha t Appe llant’s p otentia l for reha bilitation is poor. In addi tion, we conclude that consecut ive sentenci ng is reas onab ly related to the severi ty of t he offensesand is congruent with generalprincipl es of sente ncing . In sho rt, we ho ld thatthe tri al court di d n ot abuse its discretion when it imp osed con secutive senten cing in this c ase. Th is issue ha s no m erit.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE-11-

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOHN H. PEAY, JUDGE