1 The confiden tial i nformant ’s name i s also s pelled “ Tracie Johns on” in var ious port ions of t he record. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs April 25, 2001

STATE OF TENNESSEE v. MELVIN E. BEARD

Appeal as of Right from the Circuit Court for Williamson County

No. I-1098-346-A Timothy L. Easter, Judge

No. M2000-02394-CCA-R3-CD - Filed August 30, 2001

The appellant, Melvin E. Beard, was convicted in the Williamson County Circuit Court of

one count of the s ale and delivery of

less than .5 grams of crack cocaine, a class C felony . The trial court sentenced the appellant to ten years incarceration in the Tennessee Depa rtment of Correction and imposed a fine of two thousand dollars ($2000). On appeal, the appellant raises the following issues for our review: (1) whether the evidence at tria

l was sufficient to

sustain the appellant’s conviction; (2) whether the trial court erred in allowing the State to introduce the portion of an audio tape recording of

the drug transaction that occurred outside the presence of the appellant; (3) whether the trial court erred in refusing to grant the appellant’s motion for mistrial; and (4) whether the trial court erred in sentencing the appellant. Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.

Eric L. Davis, Fr anklin, T ennessee; and Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant, Melvin E. Beard.

Paul G. Summers, Attorney General and Re porte r; Je nnife r L. Bledsoe, Assista nt Attorney G

eneral; Ron ald L. Davis, District Attorney General; Dere k K. Smith and Lee E. Dryer, Assistant District Attorneys General, for the appellee, State of Tennesssee

.

OPINION

I. Factual Backgr

ound On May 5, 1999, confidential informant Tracey Johnson, 1 who was assisting the Williamson County Sheriff’s Department, called the appellant and made arrangements to buy crack2 Johnson testified that, at the time of the events, she and Barrett were dat ing. However, Johns on also test ified that she and Barrett ha

d married before t

he tria l. Barret t was in volved in

the drug transac

tion because John son did not possess a driver ’s licens e and needed someone to drive he r to the meeti

ng place.

-2- cocain e. Prior to the drug purchase, Detective Barry Kincaid and Detective Jack Fran z of th e Williamson County Sherif f’s Department a

ttached a “body

wire” to Johnson in order to

monitor the proceedings and to make an audio tape recording of the transaction. The detectives also searched Joh nson, Steve Barrett, 2 and the truck Johnson and Barrett would be using during the transaction
, finding no contraband.

The transaction was origina lly scheduled to take place at the appellant’s home; however, on the way to the appellant’s home, Johnson and Ba rrett noticed the

appellant’s truc

k in the parking lot of the “Administrative Office Complex.” The couple approached the appellant, and Johnson inquired about obtaining the crack cocaine. The appellant inf ormed Johnson that he

first had to “pick up his boy,” but she should meet him at the “Tobacco Store” in a few minutes.

When the appellant met Johnson and Barrett at the “Tobacco Store,” he was accompanied

by Chris Johnson (h ereinafter “Chris”). The appellant parked his truck beside the truck in which Johnson and Barrett were traveling. Johnson

asked the appella

nt to give her a large rock of crack cocaine. Johnson

gave the appellant forty dollars ($40), and, in exchange, the appellant hande d Johnson two rocks of crack cocaine. During the course of the exchange, Johnson remembered

that she had promised to bring the appellant some barbecued

ribs from her workplace. Upon remembering this, Johnson mentioned to the appellant, “I’ll have to get y ou those ribs later.”

Following the transac tion, the a ppellant w as arrested, indicted, and tried on a charge of the sale and delivery of less than .5 grams of crack c ocaine, a class C felony. A jury in th e Williamson County Ci

rcuit Co urt found the appellant guilty of the charged offe nse. At the sentencing hearing, the State a nd the ap pella nt agr eed th at the appel lant q ualif ied as a Rang e II multiple offender. Furthermore, t he State adduced proof, via the pre-sentence report and the appellant’s own testimony , regarding t

he numerous convi

ctions li t tering the appellant’s record. Addi tio nal ly, the State established that the appellant’s record contains at least one p robatio n violation and revocation and that the instant offense was committed while the appellant was serving

a community co

rrections sente

nce. Based upon

this proof, the trial court se ntenced the appe

llant to
ten years incarceration in the Tennessee Depa rtment of Correction, the max imum sentence for a Range II offender convic

ted of a class C felony.

II. Analysis A. Sufficiency of the Evidence The appellant first challenges the sufficiency of the evide nce support ing his conviction of the sale

and delivery of

less than .5 grams of crack cocaine. It is well-established law that, as the prevailing party in the trial court, the State is entitled to the strongest legi

timate view of the evidence an

d all reasonable

inferences which may

be drawn therefrom. State v. Williams , 657 S.W.2 d 405, 410 (Tenn. 1983). In connection with this issue, we recognize that qu estion s-3-

concerning the credibility of witnesses and th

e weight and va

lue to be given th

e evidence, as w

ell

as all factual issues raised by the evidence, are resolved by the jury

as the trier of fa

ct and not this
court. State v. Pruett

, 788 S.W.2d 559, 56 1 (Tenn. 1990). Moreover, because a jury conviction essentially

removes the presumption of innocence the appellant enjoyed at trial and replaces it w

ith

a presumption of guilt on appeal, theappellant bears the burden of demonstrating to this court why the evidence will not support the jury’s findings. Id. In order to satisfy this burden, the appellant
must establish that

no reasonable trie

r of fact could ha

ve found the esse

ntial elements of t

he offense beyond a reasonable doubt. Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

In order to sustain the

appellant’s conviction, the State needed to prove at trial that the appellant knowingly delivered or sold a controlled substanc e. Tenn. Code Ann. § 39-17-417 (a)(2) & (3) (1997). Notably, our code provides that cocaine is a schedule II c ontrolled substance. See Ten n. C ode Ann. § 39-17-408(b)(4) (1997). Additionally, Tenn. Code Ann. § 39-11-302(b) (1997) provides that

“[a] person acts knowingly with respect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to ca use the result.”

As evidence at trial, the appellant stipulated to the chain of custody of the rocks of crack cocaine obtained from Johnson and further stipulated to the Tennessee Bureau of Investigation (TBI) laboratory report, which revealed that the rocks ar e .2 grams of crack coc ain e. Moreover, Johnson identified th

e appellant as the

individual who, pur

suant toa prior

agreement, sold her the crack cocaine. Also, Detective

Kincaid’s trial testimony corroborated much of J ohn son ’s t est imo ny.

The appellant’s main complaint, however, is not that the State failed to produce the foregoingevidence, but that the jury believed the testimony of Johnson. The appellant argues that, in light o f Jo hnson’s past

convictions of passing bad checks and of criminal impersonation and because an assault charge against Johnson was dismissed the day after the drug transaction, Johnson

was not credible

as a witness. See State v. Tony A. Baker , No. 01C01 -9711-CC- 00537, 199

9 WL 191584, at *2 (Ten

n. Crim. App. at Nas

hville, April

8, 1999). The appellant

argues that the proof demonstratedthat Chris was actually the drug dealer and the appellant wa s simply present at the transaction to obtain the barbecued ribs. Essentially, the appellant implores this court

to substitute its judgment for

that of the jury. This we cannot do. State v. Jackson , 814 S.W.2d 740, 742-3 (Tenn. Crim. App. 1991); State v. Michelle Ferguson
, No. E1999- 01302-CCA

-R3-CD, 20

00 WL 1100223, at *10 (Tenn. Crim. App. at Knoxville, August 3, 2000). We reiterate that Tennessee law dictates that a determination regarding the credibility of witnesses lies within the purview of the jury. See Statev. Millsaps
, 30 S.W.3d 364, 368 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 2000) (stating that “the weight and credibility of the

witnesses' testi

mony are ma

tters entrusted e

xclusively to the jury as the trier[] of fact”). Therefore, because “the jury resolved the[] issue[] of credibility in favor of the State, [this] appellate court may not reconsider t he jury's credibility assessment[].” Statev. Carruthers , 35 S.W.3d 516, 558 (Ten n. 2000), cert. denied , __ U.S. ___, 121 S. Ct. 2600 (2001). Accordingly

, we conclude tha

t the State adduced suffic

ient evidence at

trial to sustain

the appellant’s conviction.-4- B. Audio-Taped Statement The appellant’s second and third is sues concern an audio tape recording of the drug transaction that the State played for the jury. Prior to tri a l, the appellant mo

ved to exclude all
statements

on the recording that were made outside the appellant’s presence. The trial court granted the motion and instructe

d the State to

pla y only t

hat portion of the r

ecording from t

he preamble through the last encounter. Regrettably, the State misunderstood this instruction and played a part of the recording where Johnson said, “We got it.” This

statement occurred after the conclusion of the transaction and afte r the appellant had left the scene. This part of the recording was excluded by the trial court’s ruling and was impermissibly playe d for t he jury. Af

ter the State play

ed this portion of the recording, the appellant moved for a mistrial. However, the trial court ru led that, although the State violated the court’s order by playing that portion

of the recording

, the error did
notaffect the defense and did not amount to an error egregious enoug h to require a mistrial. The appellant then requested th

at th e trial court g

ive a curative instruction to the jury. The trial court agreed and instructed the jury that, in determining the appellant’s guilt, they were notto consider the portion of the recording in which Johnson said, “We got it.”

The appellant fir

st alleges that the trial court erred by allowing the State to play the contestedportion of the rec ordin g, arguing that the State “grossly disregard[ed] the trial court’s previous ruling.” Although we agree that the State impermissibly played a portion of the recordi ng, there is nothing in the rec

ord to support the a

ppellant’s claim t

hat the State’s ac

tion was intentiona

l. Rather, the record reflects that the contested portion of the recording was played only because the Statemisunderstood the court’s ruling as to when the recording was to be stopped. Moreover, the appellant made no effort to i nterrupt that por tion of the recor

ding, only a

sking for a mistri

al at its conclusion. This iss

ue is without merit.

The appellant next contends that t he trial court erred by deny ing the appellant’s motion for a mistrial. A mistrial is a procedural device that is only appropriate when the trial cannot continue without causing a miscarriage of justice. State v. McPherson

, 882 S.W.2d 365, 370 (Tenn. Crim. App . 1994). In other words, there must be a “‘manifest necessity ’” for a mistri al to b e declared. State v. Millbrooks , 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991). In conducting our review of this issue, we note that this court has pre

viously found that “[t]he de

cision of whether

to gran ta mistrial is within the sound discretion of the trial court. This court will not disturb that decision absent a finding of abuse of discretion.” State v. Mathis , 969 S.W.2d 418, 422 (T enn. Crim. App. 1997) (citations omitted).

In the insta

n t case, the contested evidence consisted of Johnson’s audio statement “We got it,” referring to the completed purchase of crack coca ine. Ho wever , the jury also heard Johnson testify that

she bought th

e crack cocaine from the appellant. Therefore, even though the State committed an error by allowing the jury to hear the contested stateme nt, such error is c

learly harmlessin light of the overwhelming evidence of the appellant’s guilt. Moreover
, the “[o]bject

ion[] interpos ed by the

appellant’s counsel w[as] sustained and the trial judge gave [a] curative instructi on[] to the jury. It is presumed that the jury followed the trial judge’s instruction[] no t to consider inadmissible evidence.” Millbrooks

, 8 19 S.W.2d at 443; see also State v. Melvin , 913-5-

S.W.2d 195, 201 (Tenn. Crim. App. 1995). Accordingly, due to the harmless nature of

the contested evidence and the prompt curative instruction given by the trial court, we conclude that the trial court didnot abuse its discretion in denying the appellant’s motion for a mistrial. See State v. Michael E. Wallace
, No. M1999-

02187-CCA

-R3-CD, 20

01 WL 208511, at *5 (Tenn. Crim. App. at Nashville, March 1, 2001).

C. Sentencing

Finally, the

appellant argues that the trial court erred in sentencing the appellant to ten years inc arce rat ion , th e ma xim um s ent ence for a Ra nge II off end er co nvi cte d of a cl ass C fe lon y. As a preliminary matter, we observe that, because the trial court misapplied a mitig ating factor, we will review the trial court’s determinations de n ovo without a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (1997) ; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In any event, the burden is on the ap

pellant to demonstr

ate the impropriety of his sentence. Tenn. Code Ann. § 40- 35-401, Sentencing Commission Comments.

We must consider the following factors in the course of our de novo review: (1) the evidence, if any, received at the trial and the sentencing he aring; (2) the pre-sentenc

e report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature a nd characteristics of the criminal conduct involved; (5) evidence and information offered by the parties

on enhancement an

d mitigating fa

ctors; (6) any

statement by

the appellant in hi

s own behalf; and (7) the appellant’s potential for rehabilitation or treat ment. Tenn. Code Ann. § 40-35-102 and -103 (1997), -210 (200

0 Supp.); see also Ashby , 823 S.W.2d at 168.

1. Length of Sentence The appellant conten

ds that “the trial c

ourt erred in we

ighing the enha

nc[ement] factors . . . and in not finding the existence of any mitigating factors. . . .” No t ably, the appellant does n ot contest the accuracy of the trial court’s application of the e nhancement factors, only the weight afforded to those factors. The trial court applied enhancement factor (1), finding that the appellant “has a previous history of criminal convictions or cr

iminal behavior in a

ddition to those necessary to establish the appropriate range.” Tenn. Code Ann. § 40-35-114 (1) (1997). The appellant stipulated that he qualified as a Range II multiple offende r. The appe llant ’s criminal histo ry consists of two felony convictions of driving while a habitual motor vehicle offender a nd thirteen misdemeanor convictions of various o ffenses. Although we may not consider the appellant’s
two felony con

victions, as they are the basis for the appellant’s Range I I status, see Tenn. Code Ann. § 40-35-106(a)(1) (1997), we may take into account the a ppellant’s numerous misdemeano r convictions in applying this factor. We agree with the trial court that enha ncement factor (1) applies to the appellant.

Next, the trial court found that the appellant “has a previous history of un willingness
to comply with the conditions of a sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(8). Th

e pre-sentence

report and the ap

pellant’s t

estimo ny at the sentencing hearing reveal that the appel lant h as previously violated his probation and that he committed the instant offense while on community corrections. This court has often explained that a trial court may not-6-

consider the commission of the

instant offense

while on a form of release as proof of a previous history of un

willingness

to comply with a sentence involving release in the community. See State

v. Hayes , 899 S.W .2d 17 5, 185-186 (Tenn. Crim. App. 1995). However, such evidence may be considered

by the trial court if it falls within the parameters of Tenn. Code Ann. § 40-35-114(13). Regardless,

evidence in

the appellant’s r

ecord regar

ding at least one

probation violatio

n, as well as proof of the commission of prior offenses while on bond, is more than enough to warrant application of enhancement factor (8). See State v. Ealey , 959 S.W.2d 605, 613 (Tenn. Crim. App. 1997).

Last ly, the trial court ap

plied enhanceme

nt factor (13), f

inding that the ap

pell an t committed the instant offen se “while on any of the following

forms of release

status if such rele

ase is from a prior felony conviction: . . . (E) [a]ny other ty pe of release into the community under the direct or indirec t supervis ion of the department of correction or local governmental authority .” Tenn. Code Ann. § 40-35-114 (13). At th e sentencin g hearing, the appellant admitted that he committed the instant offense w

hile he was serving a

community

corrections sentence for the felony offense of driving while an habitual motor vehicle offender. As we earlier st ated, factor (13) is a proper enhancement

factor for the trial court to consider in enhancing the appellant’s sentence based upon such proof. Thus, we conclude that the trial court correctly applied enha ncement factor (13) to the appellant. Cf. State v. Mark Crites , No. 01C01-9711-CR-0051 2, 1999 W L 61053, at *5 (Tenn. Crim. App. at Nashville, February 9, 1999).

The trial court found

that no mitigating

facto r s were applicab

le to the appellan

t. However, the appellant contends that the trial court erred in not finding the presence of the following mitigating factors: (1) the defendant’s criminal conduct neither caused nor threatened serious bodily inj ury; (3) substantial grou nds exist tending to excuse

or justify the

defendant’s cr

iminal conduct, though failing to estab

lish a defense; (

4) the defendan

t played a mi

nor role in the commission of the offense; and (11) the defendant, although guilty of the crime, c ommitt ed the offense under such

unusua l circumstances that it is unlikely that a sustained intent to violate the law motivated that criminal conduct. Tenn. Code Ann. § 40-35-113(1), (3), (4), and (11) (1997).

The appellant has ma de no argument as to how mitigating factor (3) applies to the appellant’s conduct in this case, and we conclude that it does not apply. Th erefore, we a

gree with the State that the trial court did not err in failing to find the existence of mitigating factor (3). Add iti ona lly, at the appellant’s sentencing hearing the appellant argued
, in support of mitigating f actors (4) and (11), that the evidence clearly showed that the drug dealer in this case was Chri s Johnson and that the appe lla nt was mere ly accompanying him. We disag ree. The testimony of confidential inf orm ant Trac ey Jo hnson reveals that she called the appellant to arrange a drug purchase, later met the appellant at the tobacco store, and bought forty dollars ( $40) worth of crack cocaine from the a

ppellant. We conclude that neither mitigating factor (4) nor mitigating factor (11) apply to the app el lant. See State v. Thomas Gardner , No. 01C01 -9302-CR- 00060, 199 3 WL 311539, at *2 (Tenn. Crim. App. at Nashville, August 12, 1993).

The appellant further contends that the trial court erred in failing to find that the appellant’s “criminal conduct neither caused nor t h reatened serious bodily injury.” Te nn. Code Ann.-7-

§ 40-35-113(1). The application of mitigating factor (1) in cases involving cocaine has been an issue of some debate in our appel late courts . Recognizi ng t his co ntroversy, our supreme cour

t recently “reject[ed] a per se exclusion of this mitigating factor in cocaine possession cases.” State v. Peter Allen Ross , No. W1999-00972-SC-R11-CD, 2001 WL 760100, at *12 (T enn. at Jac kson, July 9, 2001) (publication pending) (emphasis added). However, the court also stated that if

the app ell ant act ual ly sold or attempted to s ell the drug at the time of the offense

. . . then the dange

rous nature of the

drug, combined w

ith the dangerous nature of many dru g tran sactions, may . . . indeed support[] the trial court’s rejection of t his factor a s constit uting a threat of serious bodily injury. Id. at *11 (emphasis added).

Turning to cases from this court for further guidance, we no te that, in many of the

cases rejecting the application of mitigating factor (1) to the sale of co caine, th is court has placed heavy emphasis upon the large amount of cocaine sold by a defenda nt. See State v. Roger D. Pulley
, No. 01C01-9501-CC-00013, 1995 WL 555060, at *4 (Tenn. Crim. App. at Nashville, September 20, 1995); Johnny Arwood

v. State , No. 335, 1991 WL 73957, at *4 (Tenn. Crim. App. at Knoxville, May 9, 1991). However, in theinstant case, the appellant was convicted of selling .2 grams of crack cocaine, a relatively

small amount. Ther

efore, we find t

h at th e trial court should have applied mitigating factor (1) in determining the appellant’s sentence. See State v. Michael Dean Ta te , No. 03C01-9712-CR-00553, 1999 WL 39024, at *3 ( Tenn. Crim. App. at Knoxville, January 28, 1999); Statev. Johnny Ray Christman
, No. 01C01-9211-CC- 00361, 1993 WL 33 5420, at *2 (Tenn. Crim. App. at Nashville, September, 2, 1993). Regardless, we also determine that this mitigating factor is entitled to

little weight. See Baker , No. 01C01-9711-CC-00537, 1999 WL 191584, at *3. Considering the number and strength of the enhancement factors, we conclude that the trial cou r t correctly sentenced the a

ppellant to ten y

ears incarcer

ati on in th e Tennessee Department of Correction.

2. Probation

The appellant also

argues that the trial court should have granted him probation. Gen eral ly, an appellant

is eligible for pr

obation if the sentence ac

tually impose

d is eight ye

ars or less. Tenn. Code Ann. § 40-35 -303(a ) (1997). Because we agree with the trial court that a ten y ear sentence of incarceration

is appropriate, the appellant is therefore ineligible for probation. See State v. Smith , 910 S.W.2d 457, 462 (Tenn. Crim. App. 1995). This issue is without merit.

3. Consecutive Sentencing Last ly, the appel lan t complains that the trial court erred in sentencing him to serve this sentence consecutive to a sentence for aggravated per jury. Tenn. Code Ann. § 40-35-115(b) (1997) provides th

at a trial court may impose consecutive sentencing if the appellant meets one of the criteria contained therein. Moreo ver, if the tr ial court classifies the appellant as a dangerous offender
, s eeTenn. Code Ann. § 40-35-115(b)(4), the court must also find that the sentence

reas onably

relates to the sev

erity of the

appellant’s off

enses and that co

nfinement is nece

ss ary t o protect society from further criminal cond uct by the appellant. See State v. Lane , 3 S.W.3d 456,-8-

460-61 (Tenn. 1999); State v. Wilkerson , 905 S.W.2d 933, 938 (Tenn. 1995). However, contrary to the appellant’ s argument, bec ause the trial court did not

find that the appellant was a dangerous offender, the trial court was not obligated to apply the Wilkerson factors. Lane , 3 S.W.3d at 460-61.

The trial court imposed consecutive sentencing because the appellant “is an offender whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(b)(2). This court has previously

found that “[e]xtensiv

e criminal history

alone will s upport consecutive s entencing.” State

v. Adams , 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). The pre-sentence report reflects, and the appellant admits, that his cri m inal record consists of two prior felony convictions and thirteen misdemeanor

convictions. See Statev. Pettus , 986 S.W.2d 540, 545 (T enn. 1999); State v. Reginald Tyrone Donnell , No. M1999-021 84-CCA-R3 -CD, 2000 W L 1763685, at *14 (Tenn. Crim. App. at Nashville, November

30, 2000); State v. Danny Ray Trull , No. M1999-00036-CCA-R3-CD, 2000 WL 337592, at *3 (Tenn. Crim. App. at Nashville, March

31, 2000). We conc

lude that, with this his tor y, the appellant qua

li fies for consec utive sentencing under Tenn. Code Ann. § 40-35-115(b)(2).

III. Conclusion Finding no reversible error, we affirm the judgment of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE