# FILED
July 15, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 01C01-9709-CC-00389 Appellee, ) ) LINCOLN COUNTY VS. ) ) HON. CHARL ES LEE, ANDRE PA

RKS, ) JUDGE ) Appellant. ) (Sale of Cocaine)

FOR THE APPELLANT : JOHN HARWELL

DICKEY District Public Defender MICHAEL D. RANDLES (At Trial) Assistant District P ublic Defender 218 North Main Street Shelbyville, TN 37160
JULIE A. MA

RTIN (On Appeal) 706 Walnut Street, Ste . 900-A P. O. Box 426 Knoxville, TN 37901-0426 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter DARYL J. BRAND Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 W. MICHAEL McCOWN District Attorney General WEAKLEY E. BARNA RD Assistant

District Attorney

General Marshall County Courthouse Room 407 Lewisburg, TN 37091

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE2 O P I N I O N Defendant, Andre Parks, appeals his convictio n by a Lincoln County j ury of the offense of selling cocaine under 0.5 grams, a Clas s C felony. He was sentenced to a term of ei ght (8) ye ars and eleven (11) months and denied alternat ive senten cing. He pre sents the following issues fo r our review:

1. whether

the evidence is sufficient to support the guilty verdic

t; 2. whether

the trial court erred in failing to suppress the und ercover agent’s in-cour t identification of the defendant; 3. whet her

the trial court erred b y admitting into evidence the packages containing the cocaine since it had defendant’s name marked on them; and 4. whether

the trial court erred i n sent enc ing the defendant. After a careful review of the evidence, we affirm the jud gment of the trial court.

FACTS

The state’s proof showed that on June 20, 1996, underc over agent , Tommy Bie le, was a Dickson polic e officer on special assignment to the Seventeenth Judic ial District Drug Task Force in Lincoln County . He utilized an unmark ed vehi cle containing audio and vi deo equipment. At approximate ly 5:30 p.m. the defendant approac hed Ag ent Biele’s vehicle. The agent was able to v iew the defendant close up, face-to-face. As a police officer, Agent Biele had been trained to “memorize everything you can about them before they leave. ” The a gent requested of the defendant three (3) rocks of crack cocaine for $50. The defendant handed the agent t hree (3) rocks, and the ag ent paid the defendant $50. The transaction was videotaped and show n to t he jury. The agent did not notice any distinguishing

marks or scars on the sel ler. Agent Biele w as “100% certain” that the defendant was the same person w ho sold him cocaine on the date i n question.

The rocks were turned over to anothe r officer. All officers in the c hain of3

custody identified th e packaging. The s ubstance was further identified by the forensic chemist as containing 0.4 grams of cocaine base, a Schedule II controlled substance. At the conclusion of

the state’s proof, the defendant offered no witnesses or testimo ny. However, the defendant ex hibited to the jury his arms which contained
scars. The jury convicted the defendant of separate counts of selling an d delivering
coc ai ne based upon this transacton. The del ivery conviction was stricken by the trial court, thus leaving

the defendant with a convic tion for the sale of

cocaine under 0.5 grams.

SUFFICIENCY OF THE EVIDENCE

When reviewing the trial court's judgment, this Court will not disturb
a verdict of guilt unless the facts of the record and infe rences whi ch may be d rawn from it a re in sufficient as a matter of law for a r ational trier of fact to find the defendant guilty beyond a r easonable doubt. Jackson v. Virginia , 443 U.S . 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Tenn. R. App. P. 13(e); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In other words, this Court w ill not reevaluateor reweigh the ev idence brought out at trial . Since averdi ct of g uilt
removes the presumption of a defendant's innocence and replaces it with a presumption of guilt, thedefendant has the burden of proof on the sufficiency of the evidence at the appellate level. State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). The defendant was spe cif ically identified as the person who sold the controlled substance. The issue of identification is a question for the jury. State v. Strickland , 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). This is sue was resolved by the jury agains

t the defendant. The chain ofcustody was properl y shown, and the substance was identified by the forensic chemist as cocaine. The evidence is sufficient to support the verdi ct.4 IN-COURT IDENTIFICATION

Defendant next contends Agent B iele’s in-court identification of the defendant was tainted by a pri or impermissibly suggestive photographic identification.

A.
Approximately one month after the drug transaction, another agent showed AgentBiele a photograph of the defendant and inquired as to w hether this was the
same person who sold him the drugs. Agent Biele identified the defendant in the photograph as the same person who sold the drugs. The trial cou rt found this photographic identification was impermissibly suggestive and suppr essed the use of this identification as a par t of the state’s case- in -chief. However, the trial court found that an in-court identificati on was sufficiently reliable and independent from the tainted photographic identification. The trial court allowed the in-court identification of the defendant.

B.
Firstly, we note that the findings of fact of the tri al court at a suppression hearin g will no t be disturbed on appeal unless the evidence in the record preponderates otherwise. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996).

C.

Secondl y, convictions based on eyewitness identific

ation at trial following a pre -trial photographic identificatio n will be set aside onl y if the photograp hi c identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247,1253 (1968). We, nevertheless, recognize5

that a pre-trial confrontation pr ocedure may be unlawfulif, under the totality of the circumstances, the procedure is unnecessarily suggestive. Moore v. Illinois , 434, 411 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424, 433 (1977). This Court must cons ider fiv e factors in determining whether the in-court identification is reliable enough to w ithstand a due process att ac k despite the suggestiveness of the pre-trial identification. Neil v. Biggers , 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972); State v. Strickland , 885 S.W.2d at 88. These factors are: (1) the oppor tunity of the witness to view

the criminal at the

time of the cri me; (2) the witness’ degree of a ttentio n; (3) the accur

acy of t he witness ’ prior description of the crim inal; (4) the level of certainty demonstrated by the witne ss at the confrontation; and (5) the time bet ween the crime and the confrontation. Strickland , 885 S.W.2d at 88.

D.

In the case at bar Agent Biele had ample opportunity to view the defendant face-to-face. As a police officer, Agent Bi ele was trained in the i mportance of identification. Agent Biele had absolutely no doubt or

hesitation that the defendant
was the person who sold him the drugs. The transa ction was memorializ ed on videotape. The trial court foundthat the in-court identific ation wasnot tainted by the prior photographic identification. The evidence does not prep onderate against the trial court’s ruli ng. This issue is without merit.

DEFENDANT’ S NAME ON PA CKAGE

Defendant next contends the admission into evidence of the drug env elopes
was prejudicial since his name had been written on them. We respectfully disagree. One of the officers testified as to her r ole in the c h ain of custody. She received the cocaine from another agent, pac kaged and sealed it, and wrote6

identifying information on the envelopes. The defendant objected to their introduction into evidence since the d efendant’s nam e ha d been written on the envelopes. Since the chain of custody had not been c ompletely established at that time, the exhibits were marked for identification purposes only. Subsequ ently, when the chain of custody was completely established, the trial c ourt admitted the exhibits into evidence. The defendant’s name was writ ten on the envelopes

for the purpose of ident if ying evidence and establishing the chain of custody. Defendant w as not prejudiced by this pro

cedure. This issue is without merit.

SENTENCING

Defendant was sentenced as a Range II, Multiple O

ffender, to a term of eight (8) years and eleven(11) months. The Multiple O ffenderrange of punishment for this Class C felony was not les s than six (6) years nor more than ten (10) years. See Tenn. Code Ann. § 40- 35-11 2(b)(3). Alternativ e sentencing was denied. Defendant now challenges the length of the sentence and the denial of alternat ive sentencing.

A.

Thi s Court’ s review of the sentence imposed by the trial court is de
novo with a presumption of corr ectn ess . Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an affirmativ e showing in the reco rd that the trial judge considered the sentencing principles and all re levant facts and circ umstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). If no miti gat ing or enhancement factors for sent encing are present, Tenn. Cod e Ann. § 40-35-210(c) provides that the presumptive sentence shall b e th e minimum sentence within the applicable range. See State v. Fletcher , 805 S.W.2d7

785, 788 (Tenn. Crim. Ap p. 1991). However, if such factors do exist, a trial court should start at the minimum sentence, enhance the mini mum sentence within the range for enhancemen t factors and t hen reduce the sentence within t he range for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particul ar weight for each factor

is prescribedby the statute, as the w eight given to each fact or is left to the discretion of

the trial court as long

as the trial court compli es with the purposes and principles of the

sentencing act and its findings are su pported by the record. State v. Moss , 727 S.W.2d 229, 23 8 (Tenn. 1986); State v. Leggs , 955 S.W.2d 845, 848 (Tenn. Crim. App. 1997); State v. Santiago , 914 S.W.2d 116, 125 (Tenn . Crim. App. 1995); see

Tenn. Code Ann. § 40-35-210 Sentencing Comm issi o n Comments. Nevertheless, should th ere be no mitigating factors, but enhancement factors are present, a trial court ma y set the sentence above the mini mum within the range. Tenn. Code Ann. § 40-35-210(d); see Manning v. State , 883 S .W.2d 635, 638 (Tenn. Crim. App. 1994).

B.

The defendant

concede

s the tr ial cou rt properly a pplied the fo llowi ng enhancement factors:

(1) a previous history of criminal co nvi ctions in addition to those necessary to establish the appropriate range, Tenn. Code A nn. § 40-35- 114(1 ) ; (2) a previous history of unwillingness to comply with the cond it ions of release into the com m unity, Tenn. Code Ann. § 40-35- 114(8); and (3) adjudicationsof prior delinquent acts as a juveni le whi ch woul d consti tute a fel ony if committed by an adult, Tenn. Code An n. § 40- 3 5 - 114(20). Defendant had prior convictions for forgery, evading a rrest, felony theft, selling Schedule IV drugs, passing wor thless ch ecks, ass ault and battery, contempt of court, and simple assault. As a juvenile he had an adjudication for forgery. He1 Permission to appeal was denied in Keel, while no permission to appeal was

sought in Millbrooks
. 8 had a prior probation rev ocation. The three (3)enhancementfactors were properly applied.

C.

Defendant contends the trial court er red in findi ng that, due solely to the nature of cocaine, t he crime was committed under cir cumstances under

which the potential for bodily injury to a victim was gr eat. See

Tenn. Code Ann. § 40-35- 114(16). The trial court noted that th is Court has conflicting opinions as to this issue. See State v. Keel , 882 S.W.2d 410, 421 (Tenn. Crim.App. 1994); State v. Millbrooks , 819 S.W.2d 441, 447 (Tenn. Crim. App. 1991). 1 Millbrooks applied this factor finding the use of

crack coca ine to be injurious to the human body. 819 S.W.2d at 447. Keel rejected the Millbrooks analysis in its application of this factor to all cocaine cases; how ever, Keel recognized that some cocaine-rela ted cases can be co mmitted under factual scenarios justifying the application of this f actor. 882 S.W.2d at 421-22. We find Keel to contain the better analy sis. See also State
v. Robert L. O’Neal , C.C.A. No. 01C 01-9610- CC-00438, Marshall County (Tenn. Crim. App. filed December 30, 1997, at Nashville). In this case we find no parti cular circumstances causing a great potential for bodilyinjury other

than the nature of the subst ance itse lf. Accor dingly, we find the trial court erred in its

application of

this enhancement factor. Never theless, we note th at the trial court specific ally stated it gav

e very little w

eight to this enhancem en t factor in light of our co nflicting opinions. Under these circumstances, a sentence reduction due to the misapplic ation of this enhancement factor is not justified.9 D.

Defendant furth er con tends th e trial cou rt erred in refusin g to recogn ize mitigating factors. Specifica lly, defe ndant co ntends t he trial co urt shoul d have considered his seeking treatment for cocaine addiction prio r to his arrest and his pot ential for rehabilitation. Defendant has an extensive prior criminal his tory
. Defendant has continued to use drugs a nd sell them tosupport his habit. We find no error in the trial c

ourt refusing to recogni ze any mitigating factors.

E.

In summary, we find the trial c ourt only erred in its applicati on of one enhancement factor. This does not necessarily entitle defendant toa reduction of his sentence. See State v. Lavender , ___ S.W.2d ___ (Tenn. 1998). We find the trial court’s determination of the length of sentence to be appr opriate.

F.
Finally, de fendant contends he should have rec eived a n alternat ive sentence
. He concede

s he is n ot entitled to a p resumpt ion that he is a fa

vorable ca ndidate since he is a Range II Offender. See Tenn. Code Ann. § 40-35-102(6). Furthermore, defendant is not eligible for pr obation since the length of his sentence exceeds eight (8) years. See Tenn. Code Ann. § 40-35-303(a). The only possible alternat ive sentence the defendant could receive is participation in the community corrections program.10 G.

The Community

Corrections Act establishes a program of community-based alternatives

to incarceration for cert ain eligible offenders. See Tenn. Code Ann. § 40-36-103. A defendant is eligible for p articip ation in a community corr ections program if the de fendan t satisf ies severa l minimum eligibilit y cr iteria set forth at Tenn. Code Ann. § 40-36-106(a)(1)-(7). The Act does not provide that all off enders who meet these requirements are enti tled to such relief. State v. Grandberry , 803 S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn. Code Ann. § 40-36- 106(d) provides that the elig ibility criteri a shall be interpreted as minimum standards to guide the court's deter mination of eligibility

of offenders under the Act. In determining if incarcer ation is appropriate, a

trial court may

consider the need to protect socie ty by restraining a defendant having a long history of criminal conduct, the need to avoid depreciating the seriousness of the offense, whethe r confinement is particularly appro p riate to effectively deter others likely to commit similar offenses, and whether le ss restric tive meas ures have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also State v. Ashby , 823 S.W.2d at 169. The trial court noteddefendant’s extensive criminal history and his continued failure to benefit from measures less restrictiv e than co nfinement. The record certainlysupports th es e f in di ng s. We conclude the trial court did not err in denying alternative sentencing

.
CONCLUSION

For the above reasons, w e affirm the judgment of the trial cour t.

_______________________________ JOE G. RILEY, JUDGE11

CONCUR:

______________________________ CURWOOD WITT, JUDGE

______________________________ LEE MOORE, SPECIAL JUDGE