# FILED
June 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9707-CC-00267 Appellee, ) ) DECATUR COUNTY VS. ) ) HON. C. CREED McGINLE Y, WILLIAM WAYLON JA CKSON, ) JUDGE a.k.a. BILL JACKSON, ) ) (Sale of Marijuana) Appellant. )

FOR THE APPELLANT : KATHLEEN L. CALDWELL Taylor, Hallibu rt on, Ledbetter & Caldwell 44 N. Second Street, Suite 200 Memphis, TN 38103-2220 JOSEPH L. PATTE RSON (Tri al On ly) 225 W. Baltimore Street Jackson, TN 38301-6137 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter GEORGIA BLY

THE FELNER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 G. ROBERT RADFORD District Attorney General JOHN W. OVERTON, JR. Assistant

District Attorney

General P.O. Box 484 Savannah, TN 38372-0484 JERRY W. WALLACE Assistant

District Attorney

General P.O. Box 637 Parsons, TN 38363-0637

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE1 Azbill was not able to r ecord the first sale because the recording device was

inadvertently turned off.

2 On the third occasion, defendant would not sell to Azbill for fear of being caught by the police. Apparently, defendant heard a rumor that the law e nforcement authorities “weretrying to bust a school teacher for selling marijuana.” At the time of his arr est, defendant was an elementa

ry school te

acher. Azbill test

ified at trial that

he was hid

in g in 2 OPINION

The defendant, W illiam Waylon Jackson, was c onvicted by a Decatur County juryo f three (3) counts of the sale of mari juana over one-half (1⁄2) ounce, Class E felonies. The trial court sentenced hi m as a Range II offender to concurr ent terms of three (3) years for each count and denied alternative sentencing. On appeal, defendant contends that thetrial cour t erred in denying hi s motion to dismiss the indictment

as it violated the mandator y joinder provisio n of Tenn. R. Cr im. P. 8(a). He further argues that the tri al court imposed excessive sentences and improperly denied alternative sentenci ng. We affirm the judgment of the trial court.

FACTS
Although defendant does not challenge the suffici en cy of the convicting evidence, a brief summary of the relevant facts is appropr iate. In the fall of 1995, Gary Azbill w

as working wi

th the Criminal Investi gation Division of the Tennessee Highway Patrol. Jerry Man ess, who had criminal c harges pending at that ti me, was assisting Azbill in making undercover purchases of st olen goods and vehicles. Maness and defendant had been acquainted for a number o f years, and Maness lear ned that defendant was involved in the sale of marijuana. At Azbill’s request , Maness contacted defendant to “set up a buy.” On three separate occa sions, defendant sold Azbilland/or Maness onequarter (1/4) ofa pound of marijuana for $550. All of the sales occurred at Maness’ residence in Decatur County. On two of the occasions, Azbill was able to make an audio tape of the transaction. 1 Azbill was pre sent during the first tw o sale s and monitored the third through an audio transmission. 2Maness’ garage during the the third transaction and was able to see much of w hat transpired during that particular sale. 3 Defendant presented an entrapment defense at tri al. He testified that in the spring of 1995, Maness approac hed several people, incl uding himself, and

“ proposi tioned” them to grow some marijuana plants. No one accepted Maness’ offer, and Maness began pressuring defendant to gro w the pl ants. Maness persisted for some time, and defendant final ly agreed. Defendant testified that he planted the marij uan a on the side of a road several miles from his property, but took no further action to cultivate the plants’ growth. Although defendant admittedly picked the marijuana , dried it, packaged it and e ventually deliv

ered it to Maness, he clai med that he did so only at Maness ’ request. He denied sell ing the marijuana to Maness or Azbill and claimed that he
never rece ived money

from either o

f them. Marty Stewart also testified for the defen se at trial. He stated that he was present when Maness “pr opositioned” several peo ple to grow the marij uana. In defendant’s first trial, the jury was not able to reach a verdict. Defendant
was then re-indicted and convicted of three (3) counts of the sale of marijuana over one-half (1⁄2) ounce. He was sentenced as a R ange II offender

to concurr

ent terms of three (3) years for ea ch coun t. The trial court denied alterna tive sentencing. From his convictions and sentences, defendant now brings this appeal.

MANDA TORY JOINDER

In his first issue, defendant arg ues that the state viol ated Tenn. R. C rim. P. 8(a) by failing to join th e delivery of marijuana counts with the sale of mari juana counts in the first indictment. H e cont ends that he was initially charged in IndictmentNo. 411 with three (3) counts of sellingmarijuana. Following the mistrial, the state re-indicted him with three (3) counts of deliv ering and three (3) count s of selling marijuana. Defendant maintains that the delivery counts

were not

included in the original indictment. Because these offense s arose out of the same conduct,4

he insists th at the state was requir ed to join the delivery counts in the prior indictment. Therefore, he asserts that the trial c ourt should have granted his motion to dismiss the subsequent i ndictment. We initia lly note that defendant has failed t o include the prior indic tment, IndictmentNo. 411, as part of the record on appeal. It is the appellant’s duty to have prepared an adequate record i n order toallow a meaningful review on appeal. Tenn. R. App. P. 24; State v. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993); State v. Bunch , 646 S.W.2d 158 , 16 0 (Tenn. 1983); State v. Carey , 914 S.W.2d 93, 97 (Tenn. Crim.App. 1995); State v. Goodwin , 909 S.W.2d 35, 43 (Tenn. Crim. App. 1995); State v. Banes , 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). When no evidence is preserved in the record for review, we are precluded from considering the issue. State v. Roberts , 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). This Court is not at liberty to speculate as t o what c harges were contained in the previous indictment. Ther efore, the issue is waiv ed. Furthermore, this issue was not i ncluded in the motion for new tr ial. The issue is waived for this

reason as well. Tenn. R. App. P. 3(e); see State v. Walker , 910 S.W.2d 381, 38 6 (Tenn. 1995). Moreover, we consider any poss ible error to be harmless, at

best. Defendant complains of the additional counts of the indictment charging him wi th the delivery of marijuan a. However, defend ant wa s co nvicted of the sale of marijuana. He concedes that the sellingcounts were included in the origin al indictment. Therefore, defendant was not prejudiced by this alleged error. This issue is without merit.

LENGTH OF SENTENCE

In his next issue, defendant cl ai ms that t he trial co urt impos ed excessi ve sentences. More specifically,he argues that the trial court misapplied one enhancement factor and failed to apply two mitigating factors. A.5 This Court’s review

of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmative sho wing in the rec

ord that the trial judge considered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Te nn. 1991). If the trial court fails to comply with the statutory directives, there is no presumption of correctness and our review is de novo

. State v. Poole , 945 S.W.2d 93, 96 (T enn. 1997). The burden is upon the appealing party to show that the se nte nce is improp er. T enn. Code Ann. § 40-35-401(d) Sentencing Commission Com ments. In conducting our revi ew, we are r equired, pursuant to Tenn. Code Ann. § 40-35- 210, to consid er the following f actors in senten cing: (1) [t]he evidence, if any, received at the tri al and the sentencing hearing; (2) [t]hepresentence report; (3) [ t]he principles of sentencing and argument s as to sen tencing a lternati ve s; (4) [t]he nature and characterist i cs of the criminal conduct inv olved; (5) [e]videnc

e and information offered by the parties on the enhancement and mitigating factors in §§ 40-35-113 and 40-35-114; and (6) [a]ny statem ent the defendant wishes to make in hi s own behalf abo ut sentencing. If no miti gat ing or enhancement factors for sent encing are present, Tenn. Code Ann. § 40-35-210(c) prov ides that t he presumptive sentence shal l be the minimum sentence within the appli cable range. See State v. Fletcher , 805 S.W.2d 785, 788 (Te nn. Crim . App. 1991). However, if such factors do exist, a trial court should start at the minimum sentenc e, enhance the minimum sentence within the range for enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn. Co de Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the weight given to each factor is left to the discretion of the trial court as long as

the trial court complies with the purposes and principles of the sentencing act and its findings are s upported by the reco rd. State v. Moss , 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn . Crim. App. 1995 ) ; see

Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments. Nevertheless, should there be no mitigating factors, but enhancement factors are present, a trial court may set the sentence above the m inimum wit hin the range.6

Tenn. Code Ann. § 40-35-210(d); see Manning v. State , 883 S. W.2d 635, 6 38 (Tenn. Crim. App. 1994). B. Defendant was convicted of three (3) counts of the sale of marijuana, Class E felonies. This offense carried a r ange of punishment

of two (2) to four

(4) years fora Range II, Multiple Offender. In imposing defendant’s sentence, the trial court found as an enhan cement f actor tha t defen dant had a previous history o f unwillingness to c omply with the conditi ons of a sentence involvi ng release in the
commun ity. Tenn. Code Ann. § 40-35-114(8). Defendant proposed two mitigating factors, (1) that defendant’s conduct neither caused nor threatened serious bodily injury, Tenn. Code Ann. § 40-35-113(1); and ( 2) thathe was “enticed” into growing the marijuana, Tenn. Co de Ann. § 40-35-113(13). The trial court rejected these f actors and found that no other mitigating factors were applicable. Th e tria l court then imposed concurrent sentences of three (3) years for each conviction. C. Defendant argues that the t rial court erroneously found that he had a previousunwillingness to comply with the c onditions of

a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(8 ). The pr e-sentence report reveals that defendantwas placed on fou r (4) years probation following a robbery conviction in Alabama in 1981. Approximately three (3) years later, his pro bation
was revoked as a result of a subsequent convicti on. The trial court properl y applied this enhancement factor. D. Defendant also argues that the tri al cour t should have applied mitigatin g factor number 1, that his conduct n eithe r caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-3 5-113(1 ). Assumi ng the tria l court sho uld have found this factor applicable, thi s factor is entitled to little weight. State v. Ho yt Edward Carroll , C.C.A. No. 03C01-9607-CC-00254, Hawkins Count y(Tenn. Crim. App. filed August 12, 1997, at Knoxville). E.3 On one of the tapes, defendant tells Azbill that the package con tains a lo t of “shake,” so defendant added extra marijuana. “Shake” was defined as the crumbled leaves inthe bottom of the package which is considered to be the les s desir able part of the marijuana. Defe

ndant also refer

red to the marijua

na as “my ha

rvest”and told

Maness that he was saving the seeds to plant the following year. 7 Defendant further claims that the tri al court should have app lied as a mitigating factor Tenn. Code Ann. § 40-35 -1 13(13), “[a]ny other factor consistent with the purpo ses of th is chapte r.” He claim s that the trial cour t should h ave considered that he was “entrapped” as a mitigating factor. Defendant testified at trialthat Maness pressured him into g rowing the marijuanaplants. He claimed that he w as not “selling” the mar ijuana to Maness or Azbill and never r

eceived any money. H owever, he acknowledged that he picked the marijuana, dried it, packaged it, and delivered it to Maness. Azb ill test ified that he observed the tra nsactions and on one occasion actuallyplaced the money in defendant’s hands. Furthermor e, the audio tapes of the transactions do not support defendant’s entrapment the oryand actually show defendant’s familiarity with marijuana. 3 Moreover, the jury chose not to accept the entrapment defense as evidenced by the guilty verdicts. The trial court rejected the defense at sentencing and refuse d to consider it in mitigation. Under

the circumstances, we fin d that the trial court properly decli ned to apply the entrapment defense as a mitigating factor under Tenn. Code Ann. § 40- 35-113(13). F. We find that the trial court properly considered thesentencing principles and all relevant facts and circumstances. Al thoug h Tenn. Code Ann. § 40-35-113(1) should have been considered as a mitigating factor, it w ould be entitled to very

little weight. The three

(3) year Range II sentence for each conviction, w hich was one (1) year above the minimum, was proper. This issue has no merit.

ALTERNATIVE SENTENCING8 In his f inal issue, defendant contends that the trial court erred i n deny in g alternat ive sentencing. He claims that he is statutorily presumed to be a favorable candidate for alternative sentencin g because he was conv icted of Class E felonies. He maintains that the state did not overcome this presumption; therefor e, he is entitled to alt ernative senten cing. A. An especially mitigated or standard offender convicted of a Class C, D or E felony is presumed to be a favorable candidate for al ternative sentencing i n the absence of evidence to the contra ry. Tenn. Code Ann. § 40-35-102(6). Because defendant wassentenced as a Range II offender, he is not statut orily entitled to a presumption t hat he is a favora ble candidate for alternative sentencing. In determining if incarceration is appropriate, a trialcourt may consider the need to protect society by restraining a defendant hav ing a long history of cri minal conduct , the ne ed to avoid depreciating the seriousness of the offense, whethe r confinement is particularly app r opriate to effectively deter others likely to commit similar offens es, and wh ether les s restrict ive measures have often or recentl y been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d at 169; State v. Grigsby , 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997). A court may also consider the mitigating and enhanci ng factors set forth in Tenn. Code Ann . §§ 40-35 -113 and 114 as the y are rel evant to the § 40-35-103 considerations. Tenn. Code Ann. § 40-35-210(b)(5); State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Addi tionally, a co urt should consider the def en dant’s potential or lack of potential for rehabilitation when d etermining if an alternat ive sentence would be appropri ate. Tenn. Code Ann. § 40-35-103(5); State
v. Boston , 938 S.W.2d at 438. The d efe ndant's lack of credibilit y is also an appropriateconsideration and reflects on a defendant's potential for rehabilitatio n. State v. Dowdy , 894 S.W.2d 301, 30 6 (Tenn. Crim. App. 1994). B. In d etermining that defendant was not a proper candidate for alter nat iv e9

sentencing, the trial court consider ed that defendant had two prior felony convictions. Measuresless restrictiv e than confinement have proven unsucc essful forthis de fendant i n that he had a pre

vious p robatio n revoc

ation as a result of a subsequent

convicti on. Further

mo re, the trial court found that defendant’s testimony

at trial and sentencing was less than candi d. Lack ofcredibility is a n appropriateconsideration and reflects on a defendant's potential for rehabilitation. State v. Dowdy , 894 S.W.2d at 306. Moreover, in lig ht of the amountof money and quantity of marijuana involved in the sales, the trial court determined that alternat ive sentencing would deprec iate the seriousness of the offenses commit ted. C. The trial court properly considered the relevant facts and circumstances, as well as the sentencing princi ples. The trial cou rt’s finding s are entitled to a presumption of correctness. We, therefore, will no t disturb the trial cour

t’s denial of alternative sentencing. This issue is without merit.

CONCLUSION
For the foregoing reasons , the judgment of the trial cour t is affirmed.

JOE G. RILEY, JUDGE

CONCUR:

DAVID G. HA

YES, JUDGE10

WILLIAM M. B

ARKER, JUDG E