# FILED
September 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SESSION
STATE OF TENNESSEE, * No. 03C01-9709-CC-00385

Appellee, * Blount County
vs. * Hon. D. Kelly Thom as, Jr., Judge BRIAN W. GAINES, * (Delivery of Cocai ne)

Appellant. *

For Appellant : For Appellee : Julie A. Martin John Knox Walkup Attorne y Attorney General & Repor ter P.O. Box 426 Knoxville, TN 37901-0426 Ellen H. Pollack (on appeal) Assistant Attorney Gener al 425 Fifth Avenue North Stacey D. Nordquist Nashville, TN 37243-0493 Assistant District P ublic Defender 419 High Street Philip Morton Maryville, TN 37804 Assistant District A ttorney General (at trial) Blount County Courthouse 363 Court Street Maryville, TN 37804

OPINION FILED:___________________________
AFFIRMED GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Brian W. Gaines, was convict ed of delivery of over 0.5 gram of cocaine, a Class B felo ny. The trial court sent enced the defendant, who qualified as a Range I offender, to nine years imprisonment. A fine of $100,000.00 was imposed.
In this appeal of right, the de fendant presents the following issues for review: (I) whether the ev idence is sufficient; (II) whether a photog raph of the defendant was improperly admitted into e vidence; (III) whether the tr

ial court erred by fail ing to provide a missing witness i nstruction; and (IV) whether the tri al court erred by misapplying an enhance ment fa ctor and b y denying an alternat ive sentence. We affirm the judgment of the trial court.
In the summer of 1996, Horace Cardi n worked as an undercov er drug buyer for Blount County M etro Narcotics. In the ea rly afternoon of July 31, he met with law enforcement officials to prepare for a purchase of illegal drugs. Officers searched Cardin and provided him a transmitter and $100.00 in cash . They also searched his car and instal led a video recorder on the dashboard. Cardin then drove to an area of A lcoa that is well-kno wn for dru g activity.

On South Fulton Street, Cardi n encountered three black males standing in front of a house. The firs t man, later identified as co-d efendant Walter Waters, waved to Cardin and asked w hat he wanted. Cardin rep lied, "I'd like to get a good hundred if I could," meaning that he wished to buy $100.00 worth of crack3 cocaine. Waters returned to where the t wo other males were s tanding and the one identified at trial as the defendant went inside the house. The other, later identified as Mark Wimbley, approached the car and d irected Cardin to park off the s treet. Within a few minutes, the defendant returned and handed C ardin four packets of crack cocaine in exch ange for the cash.

Cardin, who testified that he got a "full view of [the defendant's] face," met with officers that afternoon, pr ovided a description of the defendant and turned over the crack cocaine. He described the defendant as fairly tall and having hair about one-half inch long and a goatee. Cardin recalled that the defendant wore a Malcolm X t-shirt. He identified a single phot ograph of the defendant that afternoon and later positively

identified him at trial. The v ideo tape, which was played for the jury, included the chi n of the individual who de livered the drugs, the top of his head, and his clothing but did not capture his full facial features.
Cardin admitted that he had pri or felony convictions for aggravated assault and bail-jumping. He acknowledged that he received about $50.00 f or each undercover drug buy

and that, in return, he w as expected to testify w hen the matter came to trial.
Ron Talbott, a Blount Metro Narcotics Officer, followed Cardin to within a block of Fulton Street. After the buy, he met with Cardin and collected f our plastic bags containing crack

cocaine. When Officer Talbott viewed the v ideo, he immediately recogniz

ed Waters but did not recognize Wimbley. Officer Talbot t thought the third indiv

idual looked familiar but coul d not recall his name. When Officer Talbott met with Cardi n later that day to prepar e for another buy, he showed Cardin photographs of Waters and the defendant. Car din identified Waters as the4 first individual to appr

oach him and the defendant as the man who s old him the crack cocaine.

Lester Parker, another informant for Blount Metro Narcotic s, has known the defendant and co-defendant Waters since gr ade school. At trial, Par ker testified that, just after Cardin returned from the drug purchase, Officer Jim Harris asked him to view the videotape and make an identification. He recognized W aters as the first man to approach Car din, the second man as Mark Wimbley, and the third as the defendant. Parker th en drove to Fulton Street where he saw the defendant, standing by the same hous e and wearing the same cl othing as depicted in the video. Parker testified that he based his identification o n the head, chin, voice and clothing of the defendant. Officer Talbot t, who was present w

hile Parker view

ed the video, testified that Par ker recognized the thr

ee individuals: "[a]s s

oon as he walked in ... and looked a t it ... he called them by name."

Carl Smith of the Tennessee Bureau of Inv estigation concluded that the four rocks weighed 0 .32 gram, 0.21 gram, 0.23 g ram and 0.26 gram, respectively, for a total weight of 1.0 gr am. Each contained cocaine base.

The defend ant pres

ented no proof.

I The defendant challenges the suff iciency of the evidence. On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences whic h might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the w eight to be given their testimony, and the reconciliation of conflicts in the proof are matters5 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 ev idence is challenged, the relevant question is whether, after reviewing th e evidence in the light most favorable to the state, any rational tr

ier of fact cou ld have found the essenti al elements o f the crime beyond a reasonable doubt. State v. Willia ms , 657 S.W.2d 405, 41 0 (Tenn. 1983); Tenn. R. App. P. 13(e).

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 C ardin on South Fulton Street. Cardin testified he was certai n that th e defen dant han ded him t he cocain e in exchan ge for his money. He stated that he had an opportunity to "get a view of his face." Parker also identified the defendant as the indiv idual in the video tape w ho delivered the cocaine.

II

Next, the defe ndant conten ds that the trial court erred by adm itting a photogra ph of th e defen dant. Def ense cou nsel argue d that th e photo s hould ha ve been excluded because the state did not comply with the rules of discovery . The defendant also contends that the trial court erred by failing

to grant a mistrial w

hen6 Officer Talbott testified that he had "pull ed a picture" of the defendant, because that language could lead the ju ry to believe the defendant h ad a prior criminal rec ord.
The defendant's pretrial discov ery motion is not in the r ecord. Discovery is "al

ways trigger

ed by the defendant ...." Rule 16, Tenn.R. Crim. P., Advisory Commission Comments. Because there is no discovery motion or order in the record, this issue must be treated as waived. Tenn. R. App. P. 24(b); State v. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). Nev ertheless, the defendant would not prevail on the merits because he has not demonst rated prejudice. When there has been a failure to produce discoverable material

within the allotted ti me, the trial judge has the discretion to fashion an appropriate reme dy, such as a continuance. Tenn. R. Crim. P.16(d)(2). Whether the defendant has been prejudiced by the failure to disclose is alway s a significant factor. State v. Baker , 751 S.W.2d 154, 16 0 (Tenn. Crim. App. 1987). Exclusion of the evidence is a drastic remedy and should not be implemented unless the re is no other reasonable alternative. See, e.g. , State v. House , 743 S.W.2d 141, 147 (Tenn. 1987). Although the trial c ourt adm itted the photogra ph , it ord ered the state to r emove "Blount County Sheriff's Department" and th e dates. In our view, the trial court provided a reasonable alte rnative. Without the designation and dat e, the photograph does not necessari ly appear to be a mug shot fr om a prior arrest.
The admissibility of photogr aphs is governed by

Tenn. R. Evid. 403. See State v. Banks , 564 S.W.2d 947 (Te nn. 1978). "Although relevant, evidence may be excluded if its pr obative value is subs

tantially outweig hed by the danger of unfair prejudice, confusion of the is sues, or misleading the j ury ...." Tenn. R. Evi d. 403. The evidence must be relev ant and its probative v

alue must outweigh any prejudicial effect. Banks , 564 S.W.2d at 950-51. Whether to admit the photographs7 is within the discr

etionary authority o

f the trial court and wi ll not be reversed absent a clear showing of an abus e. State v. Dickerson , 885 S.W.2d 90, 92 ( Tenn. Crim. App. 1993). That the photograph mig ht be viewed as a mug s hot is not sufficient to cause an inference of previous criminal activity

. State v. Washington , 658 S.W.2d 144 (Tenn. Crim. App. 1983).

Finally, the decision whether to grant a mistrial is within the trial court's discretion and will

not be disturbed absent an abuse of that discretion. State v. Millbrooks , 819 S.W.2d 441, 44 3 (Tenn. Crim. App. 1991). "Generally a mistrial will be declared in a criminal case only when there i s a 'manifest necessity' r equiring such by the trial judg e." Id. at 443. Here, the trial c ourt clearly acted w

ithin its discretionary authori

ty when it ruled that

Officer Talbott's statement that he had "pulled a picture" was not an adequate basis for a mistri al. In the context of the entire trial, any error was clearly harmless given the totality of the evidence presented at trial. Tenn. R. A pp. P. 36(b).

III Next, the defendant maintains that the trial court erred by refusing to instruct the jury that

Mark Wimbley was a "missing witness." Wimbley, identified as the man who directed Cardi n to park out of the street, w as not charged with any offense and did not testify at trial . Officer Talbott stated that Wimbley had disappeared "prior to [the] arrest of several people involved in sales over there." He testified that the Distric t Attorney had not made any ar rangement to refrain from charging Wimbley in this case and that he did not think W imbley was implicated in the drug transaction w

ith Cardin. Officer Talbott w as unaware that Wimbley had been named as a state witness o n an indictment in an unrelated mur der charge. There was no proof that Wimbley was a c ooperating witness for the state.8 To justify the missing w itness instruction in this instance, the evidenc e, strictly construed,must indicate that this w itness was peculiarl

y available to the st

ate and had knowledge of the material facts at issue; if the state, under these circumstances, fails to call the witness or give a reasonable explanation for a failure to do so, the defendant is entitled to have the trial court give instructions that the jury may infer

that had the witness been cal led, his testimony w ould have been detrimental to the state. State v. Wilson , 687 S.W.2d 720 (Tenn. Crim. App. 1984) (emphasis added). The witnes s must have knowledge of material facts, a relationship must exis

t between the witness and the state that would natur ally incline him to favor the state, and the w itness must have been avai lable to the process of the court. Delk v. State , 590 S.W.2d 435 (Tenn. 1979); State v. Bigbee , 885 S.W.2d 797, 804 (Tenn. 1994).

Wimbley, an eyewitness to the drug transaction, obviously

had knowledge of material facts.His testimony may or may not have supported the theory of the state as to the i dentity of the defendant. We conclude, however, that Wimbley's being on a possible wi tness list for the state on an un related charge is not enough, standing alone, to es tablish a natural incli nation on his part to favor the state. Officer Talbott testified that there was no "deal" with Wimbley and the reason Wimbley was not charged was because he appeared to be innocent of wrongdoing. Wimbley did not approach Cardin to inq uire what he needed, nor did he participate in the actual transaction. Officer Talbott explained that Wimbley had dis appeared and could not be located. Wimbley was no t, in our view, peculiarly availabl e to the state and simultaneously unavailable to the defense. The defendant's bare assertion that "someone for the State k new where [Wimbley] was ... ." does not meet the test.9 IV The defendant contends that the trial cour t misapplied an enhancement factor and incorrectly presumed that the defendant was not el igible for an alternative sentence. We f ind the enhanced sentence was warranted and affirm denial of an alternative sent ence.
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). "If the trial court applies inappropriate factors or other wise fails to follow the 1989 Sentencing Act, the presumpti on of correctness falls." State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentenc e.
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.10 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 provided 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 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). Even in cases where the defendant meets the minimum requirements of the Community Corrections Act of 1985, the defendant is not necessarily entitled to be se ntenced under the Act as a matter of law or right

. State v. Taylor , 744 S.W.2d 919 (Tenn. Crim. App.1987). The following 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 convicted of property- related, or drug/alcohol-related felony offenses or other felony offenses not involving cr imes 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 convicted of nonviolent felony offenses; (4) Persons who are convicted of felony offenses in which the use or possess ion of a weapon was not11 involved; (5) Persons who do not demonstrate a present or past pattern of behavior indicati ng violence; (6) Persons who do not demonstrate a pattern of committing violent offenses; and (7) Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligi ble. Tenn. Code Ann. § 40-36-106(a) (emphasis adde d).

The defendant, forty-one years ol d, is married, and has three children and two step-children. He graduated from Alcoa Hig h School in 1974 and attended Pellissippi State Community College for six months in 1994. From 1979 until 1993, when he was laid off, the defendant worked for the Alum inum Company of America as a tacman. He obtained employ ment as a tree trimmer in 1996 but was terminated when arrested and charged in this case.
While he maintains that he enjoys good phy sical and mental health, he has suffered from depression since his arrest and incarcerati on. He also has a long history of drug abuse. H e was hospitalized i n 1982 and 1989 for treatment of drug addiction. He admitted to usi ng cocaine regularly since 1979. He last used c ocaine several days prior

to his arrest.
At the age of twenty, the d efendant was convicted of sell ing marijuana and received a one-year suspended sentence. Four y ears later, he was ar

rested for assault and battery but thes e charges were dismi ssed. In 1983, he was arr ested for driving whil e intoxicated and possessi on of marijuana. While the charge for driv ing while intoxicated was dismissed, he w as convicted of possession o f marijuana.
At the sentencing hearing, the defendant maint ained his innocence12 and asked fo r a sentence involvin g drug treatment. The trial court im posed a Range I sentence of nine-years. The defendant was fined $100,000.00. The trial court found that the defendant had a history of cr iminal behavior and pri or criminal convictions. Tenn. Code Ann.§ 40-35-114(1). The trial court also concluded that the defendant was a leader in the commission of the offense, stating the he was "evident ly in charge ...." Te nn. Code Ann. § 40 -35-114 (2). For th e factor to apply, one does not have to be the leader in the offense, but merely a leader in the commission of the offense. See State v. Angele Franklin , No. 03C01-9402-CR00061 (Tenn. Crim. App., at Knox ville, Sept. 27, 1995), app. denied , (Tenn. Mar. 4, 1996). Although there is l ittle evidence in the r ecord to support this factor, the enhanced sentence is warr anted based on the defendant's history of criminal convictions and behavi or. In consequence, we affirm the length of the sentence.

In our view, the tr

ial court erroneously

concluded that the defendant was ineligible for alternative sentencing . Even with a nine- year sentence, the defendant meets the threshold qualific ations for community correc tions. State v. Reginald Hannum , No. 03C01-9710-CC-00480 ( Tenn. Crim. App., at Knoxv ille, June 26 1998). Convicted of a Cl ass B felony, the defendant, howev er, is not presumed to be a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35- 102(6). He has a handful of prior convictions and has admitt ed to almost twenty years of regular cocai ne use. See Tenn. Code An n. § 40-35-103 (1)(A). Although he has been through two in- patient drug treatment prog rams, he has been unable to manage the addiction. In this regard, he does not appear to be a favorable candidate for rehabilitation. This leads us to believe that the there is little l ikelihood of success in the community co rrections program. Tenn. Code Ann. § 40-35-103(5). On the other hand, he has a consis tent work history , including eighteen y ears of service with a s ingle employer, and he ex presses a desire to obtain fur ther13 treatment for his drug addiction. While these considerations wei gh in favor of an alternative sentence, the seriousness of the off ense and need for deterrence suggest that he serv

e his sentence with the Department of Correction. Tenn. Code Ann. § 40-35-103(1)(B).

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ Joseph M. Tipto n, Judge

________________________________ David H. Wel les, Judge