# FILED
September 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1998 SESSION
STATE OF TENNESSEE, * No. 01C01-9708-CR-00320

Appellee, * Davidson County
vs. * Hon. Cheryl Blackbu rn, Judge WILLIAM ALONZO HAMILTON, * (Delivery of Contr olled Substance, Simple Possession) Appellant. *

For Appellant : For Appellee : Jeffrey A. DeVasher John Knox Walkup Assistant Public Defender Attorney General & Repor ter 1202 Stahlman Building Nashville, TN 37201 Janis L. Turner (on appeal) Assistant Attorney Gener al 425 Fifth Avenue North J. Michael Engle Cordell Hull Buildi ng, Second Floor Sr. Assistant Public Defender Nashville, TN 37243-0493 1202 Stahlman Building Nashville, TN 37201 John Zimmermann (at trial) Assistant District A ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201

OPINION FILED:___________________________
AFFIRMED AS MODIFIED GARY R. WADE, PRESIDING JUDGE2 OPINION

The defendant, William Alonzo Hamilton, was convicted of delivery of over 0.5 gram of cocaine and simple possession of cocaine. T he trial court sentenced the defendant, who quali fied as a Range I offender, to ten ye ars for delivery of cocaine and eleven months, twenty -nine days at seventy

-five percent for simple possession. The sentences are to be served concurr ently. A fine of $2,250.00 was imposed.

In this appeal of right, the de fendant presents the following issues for our review: (1) whether the evi dence is sufficient;

(2) whether the tri al court erred by admitting the statements of a co-conspirator; and (3) whether the sentence is excessive.

We affirm the judgment of the trial court but modify the sentence because of the misapplication of an en hancement factor.

In early April of 1995, Agent Gary Luther of the Drug Task Force was involved in an underc

over investigati on of Donna Gail Smith, from whom he ha d purchased cocaine. On April 11th, as Agent Luther attempted to arrange another purchase, Ms. Smith responded, "[O]kay ... let me get in touch with my man and I'll let you know." Later that afternoon, Ms. Smith telephoned Agent Luther and said, "I've got in touch w

ith my guy." She stat

ed that he could purchase tw o eight-balls of cocaine, about seven grams , for $380.00. Ms. Smith agree d to meet Agent Luther at Shoney's, her place of employ ment, at 10:00 P.M.3 When Agent Luther arrived, he had $5 00.00 in marked bills and wore a transmitter. Ms. Smith directed him to a closed sec tion of the restaurant and explained that she did not have the cocaine but that she had "ca lled her guy and it was supposed to be there .... " Ms. Smith then said, "I'l l have to pay when he gets here," so Agent Luther handed her $380.00. When several minutes passed, Agent Luther asked her to inquir e about the delay. Ms. Smith made a telephone call and then paced back and forth from the resta urant entrance to Agent Luther's table. Ms. Smith assured the agent that "he w ill be here in a minute."
After about twenty minutes, Ms. Smith walked to a car which had just entered the parking lot. When she returned about four minutes later, Agent Luther noticed a gold car being driven away from the

restaurant. Ms. Smith then handed Agent Luther a bag containi ng white powder. When he realized that he had not received the proper amount of co caine, Ms. Smith said, "I'l l go call him right now and we'll try to make it up and we'll make it right with you. " She stated that she could not refund any of the money because she no longer had it.

Sergeant James McWright, who w as parked in an adjoining parking lot during the transaction, s aw Ms. Smith motion a 1987 gold Nissan Pulsar tow ard the rear of the building. At tr ial, Sergeant McWright testified that Ms. Smith entered the Pulsar and then return to the r estaurant four minutes later. When he confirmed that Ms. Smith delivered co caine to Agent Luther, Sergeant McWright directed other officers who had followed the P ulsar to initiate a stop. Sergeant McWright did not see the defendant hand Ms. Smith cocain e nor could he hear their con versation.
Officer Ed Rigsby, who arrested the defendant and read him his rights, discovered a pager and $ 311.00 in cash in his possess ion. During a search of the4 Pulsar, he found a film container w hich appeared to contain cocain e between the front seats, a rock-like substance in the hatchback area of the vehicle, and plastic bags stuffed in a tennis shoe. Because Off icer Rigsby picked up the film canister, no fingerprint analysi s was performed. The defendant, who was not the ow ner of the Pulsar, had no driver 's license. Officer Rigsby testified that drug d ealers do not ordinarily driv

e their own cars becaus e of civil forfeiture law

s.
Officer Carlos Cordero was able to identify $300.00 in marked bills seized from the defendant and the other $80 .00 in marked bills wh ich were seized from Ms. Smith. Phillip Fr eeze, who tested the contr aband, determined that the bag of powder consisted of 2.3 gr ams of cocaine and the film canister contained 0.2 gram of cocaine. The rock-li ke substance was not a contr olled substance.
The thirty-three-ye

ar-old defendant testified that he met M s. Smith while he was w

orking as a cook at Shoney 's. He maintained that he loaned her $300.00 to fix her car and that she was to repay him with her income tax refund. He claimed that Ms. Smith had pag ed him on the night of his arre st and that when he returned her call, she ask ed him to come to the restaurant s o she could repay the loan. The defendant explained that he bor rowed the gold Pulsar

from a co-worker and drove to Shoney's to collect his money. He denied giving Ms.Smith cocaine and disclaimed ownership of the illegal drugs s

eized from the car.

Ms. Smith , who was a f ugitive at t he time o f trial, d id not tes tify.

I The defendant first challenges the suffici ency of the evidence for the delivery conviction. On appeal, of course, the state is entitled to the strongest5 legitima te view of t he eviden ce and all reasona ble infe rences whi ch might b e drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the w

eight to be given thei r testimony, and the reconc iliation of conflicts in the proof are matters entrusted to the jury as trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challeng ed, the relevant questi on is whether, after rev iewing the evidence in the ligh t most fa vorable to the state , any ratio nal trier o f fact c ould have found the essential elements of the cri me beyond a reasonable doubt. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e)

.

The state may use direct evidence, circumstantial evidence, or a combination of both to prove the r equisite elements of a crimi nal offense. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987). The weight to be given circumstantial evidenc

e, and any inferences to be draw n therefrom, "are questions primarily for the jur

y." Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958).
It is an offense to knowingl y deliver a contro lled substance. See Tenn. Code Ann. §§ 39-17-417(a)(2), (c)(2). A person acts knowingly "when the person is aware that the conduct is reasonably certain to c ause the result." Tenn. Code Ann. § 39-11-302(b). "'Deliv er' or 'delivery

' means the actual, constructi ve, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship." Tenn. Code Ann. § 39-17-402(6). Cocaine is a schedu le II controlled substance. Tenn. Code Ann. § 39-17-408.

In our view, the jur

y acted within its

prerogative by de

termining that the defendant delivered cocaine to M s. Smith in the Shoney's par king lot. According

to Agent Luther, Ms. Smith did not have the cocaine until she returned from the car6 driven by the defendant. The defendant ha d $300.00 in marked bills on hi s person when he was arrested . From all o f the circ umstanc es estab lished by t he testim ony, a rational trier of fact could have found that the defendant knowing ly delivered cocaine to Ms. Smith. See Jackson v. Virginia , 443 U.S. 307 (1979). The evidence is sufficient.

II

Next, the defendant challenges the hearsay statements of Ms. Smith to Agent Luther. He argu es that the state failed to prov e by a preponderance of the evidence that a conspirac y existed when the hearsay statements wer e made and that the statements of Ms. Smith were not made in the course of and in furtherance of the co nspiracy.

Tenn R. Evid. 803(1.2)(E) permits statements offered against a party that are statements "by a co-conspirator of a party during the course of an d in furtherance of the conspiracy." A conspiracy is defined a s a combination between two or more persons to do a criminal or unlawful act or a lawful act by criminal or unlawful means. State v. Lequire , 634 S.W.2d 608, 612 (Tenn. Crim. App. 1981).

For determining admissi bility of a co-conspir ator's statements, the conspiracy must be prov ed by a preponderance of the evi dence. State v. Stamper , 863 S.W.2d 404 (Te nn. 1993). In order to prove a conspiracy, it is not necessary that the state show a formal ag reement between the parties t o do the unlawful act; a mutual implied understanding is sufficient, although not manifeste d by any formal words or a writ

ten agreement. State v. Gaylor, 862 S.W.2d 546, 553 (Tenn. Crim. App. 1992). The unlawful confederati on may be established by c ircumstantial evidence and the conduct of the par ties in the execution of the criminal enterprises.7 Id.

The trial court determined that the conduct of the defendant and Ms. Smith was sufficient to establ ish that a conspiracy e xisted by a preponderanc e of the evidence. We agree. Ms. Smith ar ranged for the delivery. She watched for the defendant and upon seeing the Pulsar, she directed him to the rear of the parking lot. She entered the vehicl e and, within a few minutes , returned to the restaurant and handed Agent Luther a plastic bag containing cocaine.The conduct of the defendant and Ms. Smith demonstrates an i mplied understanding to deli ver cocaine for sale.
Having determined that a conspiracy existe d between the defendant and Ms. Smith, the statements may be admitted into evidence only if the conspiracy was in process at the time the statements were made. Tenn. R. Evid. 803(1.2)(E)

. "If the conspiracy had either not yet begun or had ended by the time the statement was made, the declaration i s not admissible under the hear say exception." Gaylor , 862 S.W.2d at 554.

The defendant argues that Ms. Smith's references to him occurred before any agreement was r eached and, therefore, were not made in the course of and in furtherance of the conspiracy. He also maintains that h er statements simply summarized her efforts to obtain c ocaine and, in the alternativ e, should be classified as casual conversation.

There were several i ncriminating statements. When first asked i f she could obtain cocaine, Ms. Smi th responded, "[L]et me get in touc h with my man and I'll let you know ." Later, she informed Agent Luther that she had made contact with8 "my guy," who coul d provide two eig ht-balls of cocaine that ev ening. When Agent Luther arrived, she ex

plained that she had "called her guy and it was su pposed to be there ...." While Agent Luth er waited, she accepted his money because, "I'll have to pay when he g ets here." Later, she said, "H e will be here in a mi nute." When Agent Luther determined that the amount of cocaine he ha d received was inadequate, Ms, Smith repl ied, "I'll go call hi m right now and we' ll try to make it up and we'll make it rig ht with you."

Based upon the various statements, it is our conclusion the conspiracy began during the course of her initial telephone call t

o her "man." While Ms. Smith did not name the defendant as "her guy ," the circumstances surr ounding the transaction suggest that the defendant was, in fact, the m an she had called earlier in the day. The statements qualify as a confirmation of the avail ability of cocaine for her customer and, as such, w ere made in furtherance of the conspir acy. The statement regarding pay ment is also in furtherance of the c onspiracy because she needed the cash in order to acq uire the cocaine from the defendant. Other statements by Ms. Smith pr ovided reassurance that th e deal would be consummated. The statements are more than i dle conversation, and, in our view were properly admit

ted into evidence.

III While not dissatisfied with the simple possession sentence, the defendant insists that the ten-y ear sentence is excessi ve for the felony convic tion. He submits that the enhancement facto rs identified by the trial court were improperly applied and that the trial cour t ignored valid miti gating factors. The state c ontends that the sentence is warr anted despite the incorrect ap plication of one enhancement factor.9 When there is a challenge to the length, range, or manner of servi ce 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). This pr esumption is "conditioned upon the a ffirmative showing in the record that the trial court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see State v. Jones , 883 S.W.2d 597 (Tenn. 1994). "If the trial court applies inappropriate factors or other wise fails to follow the 1989 Sentencing Act, the presumption of correctness falls ." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provi de that the burden is on the defendant to show the impr opriety of the sentence.
Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives;(4) the nature and characteristic s of the offense; (5) any mitigating or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35- 102, -103, and -210; State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

At the time of this offense, the presumptiv e sentence was the minimum in the range if there w ere no enhancement and mitigating factors. Tenn. Code Ann. § 40-35-210(c). Sho uld the trial court find miti gating and enhancement factors, it must start at the mi nimum sentence in the range and enhan ce the sentence based upon any applicab le enhancement factors, and then reduce the sentence based upon any appropri ate mitigating factors. Tenn. Code Ann. § 40-35- 210(e). The weight g iven to each factor is w ithin the trial court's

discretion provided10 that the record supports it s findings and it complies with the 1989 Act. See Ashby , 823 S.W.2d at 169. The trial court should, how ever, make specific findings on the record which indicat

e its application of the sentenci ng principles. Tenn. Code A nn. §§ 40-35-209 and -210.

The defendant testified the he had lost tw o jobs because of his arrest. After his release on bail, he obtained employment from Steak-Out and had a commitment from them for future employment in the event he received a s uspended sentence. He arr anged to live with his girlf riend, Gladys Cole , and agreed to a wage assignment to satisfy chi ld support obligations for his ten-year-old son

who resides in Arkansas. He stated that he was certain he could abide by the court's orders if granted a suspended or an alter native sentence.
The defendant, who had been convicted twice for assaulting

Ms. Cole, was on probation for those offenses at the tim e he committed these crimes. W hile awaiting trial, h e committed misdemeanor child abuse against Ms. Cole's el evenyear-old son.
As a Range I offender, the defendant was eligible for a sentence of eight to twelve y

ears for the delivery

of cocaine over 0.5 gram, a Class B felony. Tenn. Code Ann. §§ 39-17-417, 40-35-11 2(a)(2). The trial cou rt considered the sentencing principles set forth in the 1989 Act, the evidence, the pre-se ntence report, and the testimony of the defendant and found that the defendant had a prior history of criminal convictions or criminal behavior and had a history of unwillingness to comply with the cond itions of a sentence involv ing release to the community

. Tenn. Code Ann. § 40-35-114(1), ( 8). The trial court prov ided these enhancement factors "great weight." The trial court found the defen dant, while not the leader in11 the commission of the offense, to be a leader. Tenn. Code Ann. § 40-35-114(2).

While the defendant argued that he played a minor role in the offense, the trial court found that deli vering drugs shoul d not be characterized as a minor role. See Tenn. Code Ann. § 40-35-113(4). The trial court refuse d to consider his stable work history and lack of prior felony convictions as mitigating factors, because that behavior is expec

ted of citizens. See Tenn. Code Ann. § 40-35-113(13).

The trial court found that the defendant w as ineligible for probati on. Community Corrections was considered but rej ected given the defendant's hi story of violence. The trial court also found that placement on Com munity Corrections would deprecate the seriousness of the offense.

The def endant a rgues tha t the tria l court err ed in app lying two enhancement factors: that the defendant was a leader in the offense and that he has a history of unwil lingness to comply w ith a sentence involv

ing release to the community. Tenn. Code Ann. § 40-35- 114 (2), (8). The state conc edes that the latter factor, Tenn. Code Ann. § 40- 35-114(8), is not applicabl e. Although the defendant can be considered a leader, he did not have a previou s history of unwillingness to c

omply with a sentence i nvolving releas e to the community. See State v. Hayes , 899 S.W.2d 175 (Tenn. Crim. App. 1995) (There must be a demonstrated previous history of unwillingness).

The ruling in Hayesprecludes consideration of the defenda nt's probationary status as an enhancement. That error was c ompounded by the placement of "great weight" on this factor. Due to the error, the def endant's sentence for delivery of over 0.5 gram of cocaine is modified from ten to nine years.12 Accordingly, the j udgment of conviction of the tri al court is affirmed and the sentence for delivery of over 0.5 gram of cocaine is modified to nin e years.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_________________________________ David G. Hayes, Judge

_________________________________ Jerry L. Smith, Jud ge