# FILED
May 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON MARCH 1997 SESS ION

STATE OF TENN ESSEE, ) ) Appellee, ) No. 02C01-9611-CC-00382

) vs. ) Obion County ) MICHAEL WAYNE HENRY , ) Honorable William B. Acree, Judge ) Appellant. ) (Sale of Cocaine)

)

FOR THE APPE LLANT: FOR THE APPELLEE: C. MICHAEL ROBBINS JOHN KNOX WALKUP 202 S. Maple, Suite C Attorney General & Repor ter Covington, TN 38019 (Appellate Counsel) KENNETH W. RUCKER Assistant Attorney Gener al JOSEPH P. ATNIP Criminal Justice Div ision District Public Defender 450 James Robertson Parkwa y JAMES D. KENDALL Nashville, TN 37243-0493 Assistant Public Defender P.O. Box 734 THOMAS A. THOMAS Dresden, TN 38225 District Attorney General (Trial Counsel) HEARD B. CRITCHLOW Asst. District Attor

ney General JAMES T. CANNON Asst. District Attor

ney General 414 So. Fourth P.O. Box 218 Union City, TN 38261-0218

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 Indictment No. 10148.
2 Indictment No. 10149.
3 The jury imposed a fine of $2,000 in eac h conviction. The trial judge waived the fine du e to the defendant’s indigency in the conviction for the Class C felony and reduced the fine by one-half in the Clas s B felony conviction. 2 OPINION

The defendant , Michael Wayne Henry, was convicted in a jury trial in the Obion County Criminal Court of the sa le of more than .5 grams of cocaine, a Class B fe lony, 1 and of a second sale of less than .5 grams of cocaine, a Class C felony. 2 For the Class B felony , he received a nine- y ear sentence as a standard, Range I offender

and a fin e of $1,0 00. For the Class C felony, he received a concurrent

seven-year sentence as a Range II offender. 3 In this direct appeal, the defendant challenge s the suf ficienc y of th e evidence and contends that his sentences are excessiv e.
We affirm the judgment of the trial court.

The charges against the defendant arose as part of the Union City Police Department’ s undercover narcoticoperations. On two different o ccasions the defendant was invol ved in th e sale of cocaine t o an info rmant in U nion City, Tennessee. The grand jury re turned separate indictments on each co unt. The two cases were joined for trial.

Evidence presented at trial shows that on June 6, 1995, Anthony Dysart, the informant, reported to Lt. R ick Kelly that Mik e Henry, t he defenda nt,
was going “to hook

him up,” that is, “prov

ide him with drugs.”

The officer provided Dysartwith a “wire” and forty dollars to make the purchase. The informant rode his3

bike to the defendant’s house while the officer remained in his police car monitori ng the transaction. Via the wire, Lt. Kelly heard Dysart yelling , “Mike! Hey, Mi ke!” and then “Are you holding, man?” Kelly heard th e defendant reply that they would have to go elsewhere. M oments lat er he saw the two men ridi ng their bikes on Cheatham St. and heard the defendant say “There’s the police.”

Dysartte stif ied that he fol lowed the d efendant to a hou se on Home St. After Dysart gave him the money, the defendant told him wait down the block. Dysartwatched him enter the house. The defendant retur ned shortly and the

two rode off down the street. The defenda nt spotted Kelly in his police car, and said, “There goes Rick Kelly. If he caught me, I would just eat them.” They rode about for a fewmore minutes, and then over the wire, Kelly heard Dysart tell t h e defendant, “Go ahead and give me the whatever, I’ve got to get out of here. I’ve got to go.” The defendant passed two “rocks ” in a plastic bag to D

ysart who turned

over the contraband to Kelly a few minutes later. The laboratory technici an testified that this bag contained .1 gr am of a substance containing cocai ne.

The second offense occurred on June 30, 1995. On that day, Dysart informed Kelly that

he had arranged to buy coc aine from a person called “Fr esh.” Kellyprovided Dysart with a wire and fifty dollars and dropped him off near “Fresh’s” house at about 3:30 p.m. The officer observed that a car belonging to “Fresh” was parked nearby. Once again Kelly monitored the transaction via the wire worn b y Dysart. He testified that he heard Dysart tell the person who answered the door that he wanted a “fifty.” Following a conversation with two or three other people in the house, Kelly heard the person w ho delivered the drugs to Dysart ask if he could have “a pinch” off of it. Dy sart refused because the rocks were too small.4 According to Dysar t, “shake” are crumbs that have broken off of the larger “rocks.” 4

Dysarttestified that, although he had s et up the deal with “Fresh,” the defendant answered the door a nd asked him what he needed. “F resh” came out of another room and was standing nearby. Dysart gave the money to the defendant who then went

with “ Fresh” into the kitchen. Shortly, the defendant returned with
a pla stic bag c ontaining two “rock s” and some “shake” whi ch he gave to the informant. 4 According to the laboratory technician’s testimony, this bag contained .6 gram of a substance containing cocaine.

The conversations Lie utena nt Kelly heard over the wire were preserved on tape. Kelly, however, testified that the tapes were of poor qual ity, the voiceswere low, and, beca use of the street jargon used, he believed the jury would be able to understand very little of what was on the tapes. At the state’s request, t he tapes were admitted into evidence. The defense did not object. Neit her th e state no r the def ense requ ested th at the ta pes be pla yed for th e jury.

The defense attempted to challenge Dy sart’s credibility

both during cross-examinationand through a witness who testified concerning his reputati on for being untruthful. T h e defendant, who could not remember w hat he was doing on the dates and t imes in question, denied that he had ever sold or deliv ered any cocaine to Dysart. The defendant’s brother testified that the defendant worked for him in his pressure washi ng b usiness and that he was probably working on the aft ernoon of June 30. However, he couldn’t remember that day specific ally an d had no time cards or pay stubs that confirmed the defendant was at work at

the time in question.5 After deliberating for less than an hour, the jury found the defendant guilty in both cases.
Sufficiency of the Evidence The defendant now

co ntends that the evidence presented at trial is insufficientto support convictions for the sale of cocaine. He argues that the record contains insuff ici ent corroboration of Dysar t’s testimony, and that, at most, the evidence supports convictions for simple possession. In conjunction with his challenge to the sufficiency of the evidence, the defendant contendsthat the trial judge misinformed the jury concerning the two tapes and erred in r efusing to allow the jury to hear the tapes once deliberations had begun.

T he state argues that the evidence demonstrates that the tra nsaction s were sales as defined in State v. Willia m (Slim)Alexander , No. 01CO1-9302-CR00063, slip op. at 4 (Tenn. Crim. App., Nashville, Mar ch 24 , 1994), and that the testimony

of Lieutenant Kell y a nd Anthony Dysart is sufficient to sustain the convictions. With respect to the tapes, thestate argues that because the defense neither objected at trial nor ra ised this issue in it’ s motionf for new trial, the i ssue has been waived. On the merits, the state contends that the trial judge properly denied the jury’s reques t to hear the tapes since the defendant never requested that the tapes be played for the jur y during the trial

.

We first address the issue of the tapes. This issue has been waived pursuantto Tennessee Rules of Appellate Pro cedur e 3(e) fo r failure to raise the issue specifically in th e motion for n ew trial. The defense also failed to make ap propriate objections at trial. A party who fails to tak e whatever ac

tion i s reasonably available to prevent or nullify the harmful effect of an error at trial is not6

entitled to relief under our rules. Tenn. R. App. P. 36 (a). This issue, therefore, is waived.
However, we c hoose to address this issue on its merits . Tenn. R. App. P. 2.

The defendant first contends that since the tapes were admitted into evidence, the trial judge wrongfully refused to allow the jury to hear the tapes and that t he trial judge’s remar ks were improper comments on the evidence. The record discloses that d urin g Lieutenant Kelly’s testimony, the prosecution moved that the tapes be admitted into evidence. To admit the tape made on June 6, General Critchlow first as ked the police of ficer, “O kay, would you be willing to make that exhibit to your tes timony?” After

recei ving an affirmative res ponse, she addressed the court saying. “Okay, I would move to make that Exhibit 2.”

The procedure involvi ng the sec ond ta pe was even less formal. General Critchlow said, “I’m going to let you make that Exhibit --- four?” A nd the court responded, “It will be made E xhibit 4.” In neither instance did the defense object to the admission. Therecord reflects that the tapes were introduced, marked
an d fil ed as exhibits. Neither the state nor the defense asked that the tapes be played for the jury.

Approximately 30 minutes after beginning their deliberations, the jury asked to hear the content of th e tapes. The trial judge called the jury into the courtroom and gave the follow ing instruction: Members of the ju ry, I u ndersta nd from th e bailiff that you have asked for a tape recorder to listen to the tapes of the transactions. I’m not g oing to be able to allow you to do that. I want to exp lain to you why.7 These tapes were not playe d to yo u as part of the evidence. The testimony was that the tapes we re inaud ible, or you could not -- not inaudible, but they could not be understood. Had eith er s ide asked that the tapes be play ed anyway, I would have done that. We would have played those tapes in court, and, had w e done t hat, I would allow you to

review those tapes again in the jury room. As I prev iously told you, the only evidence that you may consider in this case is the testimony that you hear in this courtroom. You did not hear those tapes in the courtroom, and, therefore, it i s not permissible for you to review tho

se outside the courtroom. Theywere made exhibits, and they were made exhibits for identification purposes only. Perhaps I did not make t hat clea r. Obviously, I did not, but in any even the con tent of the tapes themselves are not part of the evidence in this c ase, and, therefore, I cannot allow you to list

en to those. I hope you underst and. Once again, the defense made no objecti on to the statements of the trial co urt.

The trial court did not err in denying the jury access to the contents of the tapes. It is immaterial whether the tapes themselv es we re entered into evidence or were made exhibits for the purpose of identification only. Evidence is “any species of proof, or probativ e matter, legally pr

esented at the trial of an issue, bythe ac t of the pa rties .. . for th e purpose of induc ing bel ief in th e minds o f t h e court or jury as to their contention .” Black’s Law Dictionary 498 (5th ed.1979) (citation to cases omitted). Evi dence includes “whatev er is submitted to a judge or juryto eluci date an issue, to prove a case, or to establish or disprove a fact in issue.” State v. H arris , 839 S.W.2d 54, 79 (Tenn.1992), cert
. denied , 113 S.Ct. 1368 (1992)(Reid, J., diss enting)(citations to o

ther cases omitted). In thi s instance, the contents of the tapes were not in evidence. Neither the state nor the defense requested that the tapes or any porti on thereof be played for the jury. The trial court properly denied the jur

y’s request to rev

iew the tapes in the jur

y room.8 Furthermore, when the t rial judge stated that Kelly had testified that the tapes were not unde rstandable, he was not commenting on the evidence or vouching forthe credibility of Lieutenant Kelly. He was ex

plaining why he admi

tted the tapes for the purpose of identification only . As the contents of the tapes were not placed in evidenc e by either party, th e trial judge did not err by refusing to allow the jurors to hear the tapes once deliberations began.

Contraryto the defendant’s assertions, the tapes w ere not required to corroboratethe testimony of either Kell y or Dysart. State v. James Moore , No. 6, slip op. at 2 (Tenn. Crim. App., Jackson, Feb. 1 3, 1991). Lieutenant Kelly testified to the events he observe d and to the statements of the defendant that he heard over the wire. D ysart testified to the defendant’ s acti vities and to the incriminatingstatements that he person ally he ard the defendant make. Neither Kellynor Dysart were accomplices of the defendant, and their t estimon y requires no corroboration. State v. Preston Bernard C rowder and Cynthia D iane Southall , No. 01CO1-9304-CR-00143, sli p op. at 5 (Tenn. Crim. App., Nashv ille, March 14, 1995), perm. app. denied as to Southall (Tenn. 1995).

We must now consider whether the evidence presented at the trial is sufficientto support the defendant’s convictions. Since a jury convicti on removes the presumption of innocence wit h which a defendant is initi ally cloaked and replacesit with one

of guilt, a convicted defendant has the burden of demonstrating on appeal that the evidence is insufficient. State v, Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining that sufficiency, this court does not reweigh or reevaluatethe evidence. State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978). On appeal, the State is entitled to the strongest legitimate view of the evi dence and all reasonable or legitimate inferen ce s which may be draw n therefrom. State v.5 “‘Knowing’ refers to a person who acts know ingly with re

spect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. . . .” Tenn. Code Ann. § 39-11-302 (1991).

6 Dysart testified that a “ fifty” represented a specific amount of cocaine which could be pur chased for that price.

9 Harris , 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate c ourt’s duty to

affirm the conviction if the evide nce , viewed under these s tandards, was sufficient for any rational trier of fact to have found the essential elements of

the offenses beyond a
reasona ble doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2 78 9 (1979); State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 115 S.Ct. 743 (1994); Tenn. R. App. P. 13(e)

.

To convict a

defendant for the sale of cocaine, the state must prove that the defendantknowingly sold a controlled substanc e. Tenn. Code Ann. § 39- 17-417( a)(3) (Supp. 1996). The defendant does not disput e the fact that the baggies contained cocain e, a controlled substance. Nor does he contend that he acted unknowing ly. 5 The laboratory technician testified without contrad iction that the two baggies entered into evidence by the state c ontained, respectively, .1 gram and

. 6 gram of a substance containing cocaine. During the fir st transaction, th e defendant remarked to Dysart th at if the police caught him w ith the cocaine he would eat it, and in the second tr ansactio n, the defendant asked Dysart w hat he wanted, and when Dysart told him he wanted a “fifty,” 6 he took the fifty dollars and promptly returned with the appropri ate amount of cocaine. The evidence is sufficientbeyo nd a re asonable doubt for a rational jur or to conclude that the defendant acted knowingly

.

The defendant contends, however, that the facts in this case do not prove that the transactions consti tuted sales. In essence, he a rgues that a s a10

“procurer

” of the cocaine, he may be conv icted only of simple posses sion. See State v. Baldwin , 867 S.W.2d 358 (Tenn. Crim. App. 1993). The state ar gues that both transactions were sal es as defined in State v. Willia m ( Sli m) Alexander , No. 01CO1-9302-CR-00063, slip op. at 4 (Tenn. Crim. App., Nashville, March 24, 1994). We agree.

In Alexander , this court adopted the gener al definition of “sale”

found at Black’s Law Dictionary 1200 (5th ed. 197 9 ) as “a contract betw een two parties byw h ich the seller , in con sideration of the payment

or promi se of pay

ment of a certain price in money, transfers to the buyer the title an d possession of the property.” S tate v . William (Slim) Alexander , slip op. at 4. According to this definition, a sale consists of two broad co mponents : a bargained-for offer and acceptance, and an actual or constructi ve transfer or deliv

ery ofthe subject matter property. Id

.

The defendant ‘s reliance on State v. Baldwin , 867 S.W.2d 358 (Tenn. Crim. App. 1993), is misplaced. In Baldwin , this court modified the defendant’s conviction for selling cocaine to one for possession. Id . at 359. I n Ba ldwin , the undercover

officer offered to give the defendant a ride home. Neither the defendant
nor another man who was ri ding in the car knew that the driver was a police officer. Id

. When the two men discussed purchasing drugs, the defendant

suggested that they drive to the area w

here her nephew might hav e som e for sale . When she spotted her

nephew, the other man took a tw enty-dollar bill from the officer. Id . He and the defendant approached a man who accept ed the money and handed the defendant a “rock.” Upon theirreturn to the car, the officer directed the defendant to give him the rock. When she complied, the officer arrested her. Id . In modifying the conviction, this court found that, although her ac tions had facilitatedthe sale, the11

fact t hat sh e brought the drugs back to the car was insufficient to establish her intent to participate in the sale.

In this case, Dysart offered to purchase a c ertain amount of cocaine fora given price. The defendant a ccepted the payme nts. One who accepts paymentin exchange for property is invol

ved in a sale. State v. David Henning , No. 02C01-9404-CC-00079, slip op. at 5 (Tenn. Crim. App., Jackson, Oct. 26, 1 994). In both transactions, the defendant actua lly delivered the property for whic

h he had
acce pted pay ment. In Baldwin , on the other hand, the defendant pointed out the person who was selling drugs, accompanied a third person who had the money to the transactio n, and then car ried the controlled sub stance from the seller to the undercover

officer. The defendant’s actions in thi s case sati sfy the t wo broad requirements

of a “sale.” In both transactions he accepted an offer and delivered the property. The evidence in the record is sufficientfor a rational juror to c onclude that the defendant participated in a know ing sale of cocaine on June 6 and June 30, 1995.
Sentencing

The trial court s ente nced the defendant to serve 9 y ears in the Departmentof Correction as a Range I offender for the sale of more than . 5 gram of cocaine and to serve a concurrent 7-year sentence for the sa le of less than .5 gram of cocaine. The jury imposed a $2,000 fine in eac h conviction, but the tri al judge waived the fine i n No. 10149 and reduced it to $1,000 in No. 10148.

The defendant complains that his sentence is excessiv e and thatthe trial judge erred by orderinghim to serve his sentenc es in the Department of12

Correction. He contends that the trial judge ignored the mitigating factors that

exist in this case and refused to assig n him to Community Cor rection s because of improper factors. We find no error in the trial co urt’s sentencing determi nations and affirm its judgment.

When an accused challenges the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de nov o review with a presumption that the determinations made by the trial court are cor

rect. Tenn. Code Ann. § 40-35-401(d)(1990). This pr esumption is "conditioned upon the aff irmative showing in the record that the trial court considered the sentenci ng principles and all relevant facts and circumstances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991)

. In conducting our de novo review, we must consider the evidence a t sentencing, the presentence report, the sentencing prin ciple s, the arguments of counsel, the statements of the defendant, the na ture and characteristics of the offense, any mitigating and enh ancement factors, and the defendant’s amenabil ity to rehabilitation. Tenn. Code Ann. § 40-35-210(b) (S up p. 1996); State v. Ashby , 823 S.W.2d at 168.

At the conclusion of the sentencing hearing, the trial

judge found that the three enhancement factors filed by the state were appropriate and that the one mitigating factor arg ued by the defense was not. The c ourt found that 1. The def endant has a previous histo ry of cr im inal convictions or cri minal behavior in addition to those necessary to establish the appropriate range. Tenn. Cod e Ann. §40-35-114(1). 2. The defendant has a previous h isto ry of unwillingness to comply with conditions of re lease in the community. Tenn. Code Ann. § 40-35-114(8).13 3. The felony was com mitted while on probation. T en n. Code Ann. §40-35- 114(13). The trial court made appropriate findings of fact relating to each enhancement factor and h eld correctly that each factor was applicable to both convictions. Th e defendant does not question the accuracy of those findings. Nor could he as they
are fully supported by the r ecord. Our review

discloses that the recor d fully supports the trial court’s factual findings.

With respect to the mitigating factors, the trial court made no ruling other than to state the sing le mitigat ing factor filed by the defense w as not appropriate. The tri al cour t was r efe rr ing to the factor found at Tennessee Code Annotated Section 40-35-113(1): “The defendant’s criminal conduct neither caused
nor threatened serious bodily injury.” With respect to this factor, this court ha s previouslyheld that, although a vol untary sale of cocaine may have the potential for bodilyinjury, thi s mitigating factor w as applicable “unless the c onduct relates to serious bodily injury and

the factor should be considered in relation to the facts and circumstances

of the particular case.” State v. Johnny Ray Christman , No. 01CO1- 9211-CC-00361 slip op. at 4 (Tenn. Crim. App., Nashville, Sept. 2 , 1993). If the defendant has sold very small quantities

to a willing buy

er, the factor may well be7 See also State v. Troy Carney and James Andrew Slaughter, No. 01CO1-9412-CR-00425, sli p op. at 15 (Tenn. Crim. App., Na shville, Feb. 23, 1996), perm. app. denied (Tenn. 1997)(four counts of selli ng cocaine); State v. Angele Franklin , No. 03C01-9402-CR-00061,slip op. at 4 (Tenn. Crim. App., Knoxville, Sept. 27, 1 995), perm. app. denied (Tenn. 1996)( delivery and conspiracy to deliv

er more than .5 gram); State v. James Moore , No. 6, slip op. at 4 (Tenn. Crim. App., Jackson, Feb. 13, 1991)( sale of on e “rock” of crack cocaine).

8 See e.g . State v. Richard Ric ardo King , No. 01CO1-9603-CR00113, slip op. at 3, (Tenn. Cr im. App., Nashville, F

eb. 20, 1997) (3 counts of sale of cocaine over 26 gr ams); John Derrick Martin , No. 01CO1-9502-CR00043, slip op. at 8 (Tenn. Cri m. App., Nashville, Dec . 19, 1995), affirmed in State v. Martin , ___ S.W.2d ___ (Te nn. 1997) (two sales of .5 grams or more and one of 26 grams or more); State v. Roger D. Pul ley , No. 01CO1-9501-CC00013 (Tenn. Crim. App., Nashv ille, Sept. 20, 1995) (more than 26 grams); State v. Little , 854 S.W.2d 643, 652) (Tenn. Crim. App. 1992); ( serious drug traffickers); Johnny Arwood v. St ate , No. 335, slip op. at 8-9 ( Tenn. Crim. App., Knoxville, May

9, 1991), perm. app. denied (Tenn. 1991) (sale or deliv ery of more than 2.5 grams). 14 an appropriate mitigating factor. Id

. 7 However, this court has refused to apply the factor where large amounts of cocaine have been involv ed. 8

The sales in this case inv olved relatively small amounts of crack cocaine sold to awilling purchaser. There is no indication that the defendant is a major dealer or that h e was involve d in serious drug traffick ing. However,even givingthe defendant the benefit of the existence of this mitigating factor, we cannot say that minimum sentences would be appropriate under the circumstances of

this
case. After considering the appl icable enhancing and mitigating factor s, we hold that concurrent sentences of nine years and seven year s are appropriate.

The defenda nt also contends that he should have been sentenced under the Community Correcti ons Act of 1985. See Tenn. Code Ann. §§ 40-36-101 thr ough 106 (1991). A sentence under the Community Corrections Act is an alternat ive sentence. State v. Charles P. Grigsby , No. 02C01-9507-CR-00184, slip op. at 4,6 (Tenn. Crim. App., Jack son, January 15, 1997), app. perm. to appeal9 Since the defendant received an ac tual sentence of nine years, he is not eligible for probation. Tenn. Code Ann. § 40-35-303 (a) (1991). 15 filed , Ma r. 14, 1 997; Te nn. Code Ann. § 40 -35-104 (c)(8) (19 90). The refore, we must first determine whether the defendant is a suita ble cand idate fo r alterna tive sentencing.
Especiallymitigated or standard offenders convicted of a class C, D,
or E felony and who do not possess a criminal history evincing a clear

disregard for the laws and morals of societ y and a failure of

past effort s at rehabilitation are presumed to be favorable candi dates f or alternative sentenci ng options absent evidence to the contrary. Tenn. Code Ann . § 40-35-102(5), (6) (Supp. 1996). The defendant

in No. 1 0148 wa

s convi cted of a

Class B felony. In No. 10149, he w as convicted of a Class C felo ny as a Ran ge II, multiple offender. Moreov er, the def endant has a criminal history demonstrating a clear di sregard for the laws of society because the present

offense and one earlier offense were committed while
on probation. The defendant has demonstrated his inabil ity to rehab ilitat

e himself. Hence, he is not presumed to be a favorable ca ndidate for a lternative sente ncing. 9

We recognize, howev er, that the trial court d id not review the defendant’s eligibility under the Community Correcti ons Act. SeeTenn. Code Ann. § 40-36-101 et seq . Therefore, we consider w hether he meets the requirements of that act. The Community Corr ections Act allows trial courts tosentence certain nonviolent

felony offende rs, who are neither el igible nor good candida tes for probation, to participate in community -based alternatives to i ncarceration. Tenn. C ode A nn. §§ 40-36-103,-104 (1990); State v. Meeks , 779 S.W.2d 394, 397-98 (Tenn. Crim. App. 1988); State v. Charles P. Grigsby, No. 02C01-9507-CR-00184, slip op. at8 (Tenn. Crim. App., Jackson,January 15, 1997), app. perm. to appeal16

filed , Ma rch 14, 1997 . An offender who seeks a community correction sentence must demonstrate that he:

1. will be incarcerat ed in a correctional ins titution; 2. was co nvicted of property-r elated or drug/alcohol related felony offenses or other felonies n ot involving crimes against the person; 3. was convicted of felony offenses in which the use or possession of a weapon was not involved; 4. does not demonstrate present o r pa st behavior indicative of violence or a pattern of commit ti ng violent offenses; and 5. was not sentenced to incarceration or on escape at the time the present offenses were committed. See Tenn. Code Ann. § 40-36-106(a)(1 ) - (7).

Upon our review of the rec ord, we conclude that the defendant meets the minimum eligibility requirements under subsection (a)(1) - (7). However, even though the defendant meets th e requirements of the Act, he is not automatically entitled to such relief. State v. Grandberry , 803 S.W.2d 706, 707 (Tenn . Crim. App. 1990). If an offender meets the minimum standards, the trial court must apply the sentencing considerations set forth in TennesseeCode Annotated section 40-35- 103 and the general sentencing guidelines to determine w het he r a defendant should be sentenced toCommunity Corrections. Charles P. Grigsby, slip op. at 10.

In the present case, the trial cou rt found that confinement of the defendant is necessary, based upon hi s h istory of criminal conduct, to avoid depreciating the seriousness of the offense and beca use meas ures less restricti ve have been unsuccessful. See Tenn. Code A nn. § 40-35-103(1) (1990). A trial10 According to the presentence report, the defenda nt rates his

mental health as excellent,considers himself to be a moderat e drinker, and, although he has used cocaine in the past, does not presen tly use illegal drugs. 17 court’s findings are binding unless the evidence in the record preponderates against them. State v. Jones , 802 S.W.2d 221,223 (Tenn. Crim. App. 1990). The record in this case supports the findings of the trial c ourt. The defendant has a criminal record that consists

of six felony and two misdemeanor convictions. He committed the present off enses while he was on supervised proba tion for two drug- rel ated convictions

in Kentuc ky. The presentence report indicates that he and his wife are separated and thatthe last payment of child support was on February 23, 1995. He owed approximately five thousand dollars in c hild support arrearage on the day of sentencing. Although he has obtained season al work at a l ocal nur sery, his employment

record is far from exemplar y. The defendant does not claim that he is eligible for Community Correction s based on aspecial need such as drug or alcohol abuse. 10 He has frequently been given the opportunity to rehabilitate himself in the community and has been unable to cha nge his life style.

T he d efendant’s rehabilitative p otential is central to dete rmining whether he should b e assign ed to Community Correcti ons. State v. Charles P. Grigsby , slip op. at 11. The trial court must decide each case based on its indiv idual facts and circumstances. Giv en the tri al court’s ability to review the offender’s demeanor

and characterist i cs first hand, the trial j udge is in the best positi on to determine w hether t he offender is likely to suc ceed in a community correc tions settin g. Id . A felon’s rehabilitati on potential and the risk of repea ting crimina l conduct play a major role in a court’s sentencing decisio ns. State v. Johnny Ray Christman , slip op. at 4-5. Unless the record fails to support either the factual or statutory basis for the trial court’s se ntencing decision, this court will not interpose18

a different sentencing result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim

. App. 1991).

The defendant has failed to establish that he is entitled to any form of alternat ive sentencing including Community Corrections. The record supports the trial court’s concern that the defendant was not a good r isk considering his

previous lackof s uccess with sentencing alternatives. The judgment of the trial court is affirm ed in its e ntirety.

________________________ Curwood Wi tt, Judge
CONCUR:

_______________________ Joseph B. Jone s, Judge

_______________________ Gary R. Wad e, Judge