### FILED June 10, 1997
Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1997 SESSION
STATE OF TENNESSEE, * C.C.A. # 02C01-9603-CC-00079 Appellee, * LAKE COUNTY VS. * Hon. Joe G. Riley, Jr. , Judge JIMMY RAY ROBINSON, * (Possession of Cocaine Appellant. * With Intent to Sell)
For Appellant: For Appellee: G. Stephen Davis Charles W. Burson District Public Defender Attorney General & Repor ter 208 North Mill Avenue P.O. Box 742 Susan Rosen Dyersburg, TN 38025-0742 Counsel for the State 450 James Robertson Parkwa y Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Drawer D Dyersburg, TN 38024

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The defendant, Jimmy Ray Robins on, was convicted of poss ession of cocaine with intent to s ell. The trial court impos ed a sentence of ten years to be served consecutivel

y to prior sentences and fined the defendant $2,000.
In this appeal of right, the de fendant claims that the evidence was insufficient and that the sentence w as excessive. We find no error and affirm the judgment of the trial court.

At approximately 9:00 P. M., July 29, 1994, Officer J ackie Bargery, a Ridgely police officer, was on routine patrol with Officer David Jo nes. Officer Bargery recogniz

ed the defendant, who was w alking along Bishop St reet, and stopped to arrest him based upon a bench warrant issued by the city court. When the defendant was directed to empty his pockets, Officer Barger y observed the defendant drop several items to the ground. Upon inspectio n, the officer found four separat e bags, two of which co ntained one "rock " and two o f which co ntained two "rocks."
The defendant had no cash in his possessio n and the officers wereunable to find either cigarette papers or a crack pipe in his possession. A narcoticsdetecting canine found an antenna cr ack pipe some fifteen to twenty feet away from the defendant. Assistant Chief Glenn F loyd testified that the cocai ne appeared to be packaged for purposes of sale. Each of the pieces tested positive for a controlled substance when subjected to a narcotics testing kit analysis.

A forensics chemist at th e Tennessee Bur eau of Invest igation Cr ime Laboratory tested the substa nce confiscated from the defendant. She identified3 each of the "rocks" as crack c ocaine.

The defendant testified that he was sear ched before there was ever any mention of the bench warrant. The defend ant claimed that he wore neither a shirt nor shoes and only had on sweat clothes w ith no pockets. He insis ted that he first noticed the packages of c ocaine when Officer Jones point ed to them on the ground. The defendant denied having the packages in his posse ssion and claimed that Officer Bargery, base d on a personal vendetta, w as attempting to frame him.
Tennessee Code Annotated § 39-17-41 7(a)(4) provides that it is unlawful for one "to knowing ly ... [p]ossess a contr olled substance with i ntent to manufacture, deliver, or sell." If the amount is less than 0. 5 gram, it is a Class C felony. Tenn. Code Ann. § 39-17-417( c)(2) (1996 Supp.). It may be inferred from the amount of the controlled substance,as well as other factor s surrounding the arrest, that the drugs ar e possessed for the purpose of sale. Tenn. Code Ann. § 39- 17-419.
On appeal, the state is entitl ed to the strongest legi timate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the evidence are matters entrusted to the j ury as the trier of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). This court may not reeva luate the evidence or substitute its inferences for those drawn by the jur y. Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A conviction may be set aside only when the reviewing court finds the "evidence is insufficient to support the finding by the trier of f act of guilt beyond a reasonable4 doubt." Tenn. R. App. P. 13(e).

Here, officers testified that they observed the defendant drop four packages from his pocket duri ng a routine search. The pack ages appeared to be packaged for sale. Thus, there were circumstances that warranted the inf erence that the possession was for the purpose of resale. While the circumstanti al evidence of intended sale was not overwhelming in this case, the jury acted within its prerogative, i n our view, when it determined that the defendant was guilty of possession of cocaine with the intent to sell.
The defendant, a Range II, multiple offender, w as sentenced to ten years, the maximum possi ble, for the Class C felony . In this appeal, the defendant claims that he was entitl ed to the presumption of an alternati ve sentence such as probation, split confinement, or community corrections. He also argues that the length of the sentence was ex cessive.
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 tria l court considered the sente ncing principles and al l relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety

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 of5 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. §§ 40-3 5-102, -103, and - 210; State v. Smith , 735 S.W.2d 859, 86 3 (Tenn. Crim. App. 1987).

Among the factors applicable to the defendant's application for probation are the circumstanc es of the offense, the defendant's criminal r ecord, social history, pr

esent condition, and the deterre nt effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978).

The purpose of the Community Corr ections Act of 1985 was to pr ovide an alternative means of punishment for "se lected, nonviolent felony offenders in front-end community based alter natives to incarcerati on." Tenn. Code Ann. § 40-36-103. The Community Corr ections sentence provides a desired degree of flexibility that may

be both beneficial to the defendant yet serve legitimate so

cietal aims. State v. Griffith , 787 S.W.2d 340, 342 (Tenn.1990). That a defendant meets the minimum requirements of the Commun ity Corrections Act of 1985, however, does not mean that he is entitled t o be sentenced under the act as a matt er of law or right. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App. 1987). The follow ing offenders are eligible for Community Corrections:

(1) Persons who, w

ithout this option, woul d be incarcerated in a correc tional institution; (2) Persons who are c

onvicted of property-r

elated, or drug/alcohol-related felony offenses or other felony offenses not involving c rimes against the person as provided in title 39, c

hapter 2 [repealed], parts 1- 3 and 5-7 or title 39, chapter 13,parts 1-5; (3) Persons who are c

onvicted of nonviolent felony offenses;6 (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demons trate a pattern of committing violent offenses; and (7) Persons who are s

entenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a).

Alternative sentencing

issues must be determined by the facts and circumstances of the indiv idual case. State v. Moss , 727 S.W.2d 229, 235 (Tenn. 1986). "[E]ach case must be bottomed upo n its own facts." Taylor , 744 S.W.2d at 922.
Forty years of age, the defendant has been involved i n a series of offenses since he was nineteen years old. At age nineteen, he com mitted a robbery and served a term in pri son. His many other cr imes, extending over

a twenty-year period, included theft, larceny, violation of the check l aw, and sale of marijuana. A high school graduate, the defendant has taken som e college courses and, while described by some employers as a dependable worker, he has had sporadic employment during his adul t life.
As to the length of the sentence, the defendant qualified as a Range II offender. One can qualify as a R ange II, or multiple offender, defined by Tenn. Code Ann. § 40-35-106(a)(1) , when he has had between tw o and four prior felony convictions "withi n the conviction class , a higher class, or w ithin the next two (

2) lower felony classes ...." The minimum sentence for the Rang e II offender who has committed a Class C felony i s six years; the max imum is ten years. Tenn. Code7 Ann. § 40-35-112(b)(3). The t rial court found that the defendant had nei ther caused nor threatened serious bodil y injury; that q ualified as a mitigating factor. Tenn. Code Ann. § 40-35-113(1). There w ere two enhancement factors: (1) that the defendant has a history of pr ior criminal conduct; and (2) that the defendant has a history of unwillingness to comply with conditions of community release. See Tenn. Code Ann. § 40-35-114(1), ( 8). The trial court is entitled to give gr eater or lesser weight to mitigating and enhancement factors. Here, the trial court attributed little wei ght to the mitigating factor and considerable wei ght to the enhancements.The prior c riminal hi story of the defendant was

lengthy, both in time and in the number of offense s. When the sentence ha s been administered within the statutory guideli nes, the presumption of correctnes s prevails. See State v. Fletcher , 805 S.W.2d 785 (Tenn. Crim. App. 1991). We cannot find fault with the procedure utilized in this case.

Because the sentence was more than eight years, the defenda nt did not quali fy for pro bation. Tenn. Co de Ann. § 40-35-30 3(a). More over, his e xtensive prior history of cri minal conduct suggests a lack of amenability for rehabi litation. Lack of candor, which was apparent to the trial court in this instance, may be a basis for the denial of probation. State v . Byrd , 861 S.W.2d 377 (Tenn. Crim. App. 1993). The trial court simply

did not give any credence to the defendant's claims of bei ng "framed." We cannot disagree with that asses sment.
Accordingly, the j udgment is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:8 ______________________________ Joe B. Jones, Pre siding Judge

_______________________________ Curwood Witt, Judge