### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

une 19, 2002
STATE OF TENNESSEE v. ROBERT GENTRY GA LBREATH
Direct Appeal from the Circuit Court for Bedford County

No. 14,926 F. Lee Russell, Judge

No. M2001-02495-CCA-R3-CD - Filed July 26, 2002

A Bedford

County ju

ry convicted the Defendant of twelve counts of obtaining a c ontrolled substance, Hydrocodone, b y fraud during th e period fro m August 15, 2000 throu gh Septemb er 8, 2000. The trial court sentenced the Defendant to twelve year s on each count

and imposed a fine of $2,000 for each count. The trial court ordered that counts 1-4 run concurrently; that counts 5-8 run
con curr ent ly, but consecutive to counts 1-4; and that counts 9-12 run concurrently, but consecutive to all other counts, for an effective sentence of thirty-six y ears. On appeal, the Defendant contends that the evidenceis not sufficient to support eleven of his twelve convictions for fraud and that the trial court erred in sentencing him to thirty-six year s in pri son. Finding no error, we affirm the judgment of the tr

ial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined. Larry F. Wallace, Jr., Shelbyville, Tenn essee ( on appeal), and Richard Dugger, Shelbyville, Tennessee (on appeal and at trial), for the Appellant, Robert Gentry Galbreath. Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, AssistantAttorney General; William M. McCown, District Attorney General; and Mich ael D. Ra ndles, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. FACTS

The following evide

nce was prese nted at the Defendant’s trial: On September 7, 2000, Eckerd’s pharmacist Chris Crafford received a message from a Dr. Barry Beck in Nashville calling in a prescription for

a Terry Sanders. The call-in prescription was for Hydrocodone. Since Crafford
was unfamiliar with Dr. Beck, he called Dr. Beck’s office to verify the prescription. Dr. Beck was1 Chris Crafford testified that DEA numbers are identif icati on numbers assi

gned by the federa

l government to doctor s permittin g them to legally pr escribe co ntrolled su bstances.
-2- notin at the time; however, a nurse in his office told Crafford that Terry Sander s was not a patient of Dr. Beck’s. Later, Dr. Beck called Crafford and confirmed that he did not call in such a prescription. Crafford thencalled Agent Thomas Biele of the 17 th Judicial District Drug Task Force andtold him that someone posing as Dr. Beck had called in a prescription. Agent Biele told Crafford to fill the prescription and to call him as soon as someone attempted to pick it up.

The next day, Agent Biele received a call that someone wa s in the store t o pick up the prescription. Agent Biele immediately went to the store. The clerk who had called

Agent Biele gave Biele a physical description o f t he person picking up the prescription. Agent Biele saw the Defendant pay for and receive the prescription. Agent Biele then followed the Defendant outside, observed the Defendant ta

ke th e pres cription bottle out of the bag, and observed the Defendant attempt to throw away the bag. Agent Biele a sked the Defendant

for the crumpled white bag and identified himself as an agent for the 17 th Judicial District Drug Task Force. Agent Biele then asked the Defendant for identification, and the Defendant replied that he did not have any. Agent Biele searched the Defendant and found pieces of paper on the Defendant’s person on which were written the names and Drug Enforcement Agency (DEA) numbers 1 of Dr. Beck and another physician, Dr. Mack, as well

as the names and phone numbers of Terry Sanders and Kevin Gre en. The Defendant then identified himself as Robert Galbreath from Columbia, Tennessee and stated that the agent “had him” and that he would fully cooperate.

The Defendant was a

rrested and tra

nsported to the poli

ce station where

he was read his Miranda rights before being interrogated. The Defendant agr eed to talk to police and signed a waiver of his rig h ts. The Defendant informed Agent Biele that he had fraudulently obtained prescription drugs at Eckerd’s on previous occasions, using three different names: Terry Sanders, Kevin Gre en, andTammy Stewart. According to the Defendant, to obtain fraudulent pre scriptions, he wentto doctors’ offices, copied their DEA numbers off of prescription p ads, and t hen called pharmacies using these numbers. Agent Biele checked the phone numbers for the names written on the pieces of paper found on the Defendant’s person and discovered that the numbers did not correspond to the doctors’ names. Agent Biele then retur ned to the Eck erd’s store and requested data sheets on the
names provided by the

Defendant. Agent Biele found twelve prescriptions prescribed by Dr. Beck and D r. Mack for Terry Sanders, Kevin Green, a nd Tammy Stewart. They were prescri bed o n August 15, 17, 19, 22, 23, 26, 27, 29, and30, as well as on September 1, 2, and 8, 2000. Dr. Beck andDr. Mack confirmed by phone and by letter that none of the three individuals were t

heir patients. Following the trial, a sente ncing hearing

was held on Augu

st 2 , 2001. Cer tified and uncertified

copies of seven c

onvictions for for

gery, te n convictions for p

assing forge

d instruments and o ne conviction for

criminal attempt w

ere offered in

to evidence. The

Defendant admitt

e d t o attempting to smuggle drugs into jail on more than one occasio

n. He also admitted

that his probation hadbeen revoked on

more than one occ

asion. At the time

of the sent encing heari ng, the Defendant hadtwelve other prescription fraud charges in another county pending against him, for which he was-3-

out on bond. The Defendant was also on supervised probation for another fraudulent prescription charge when he committed the crimes in the instant case.

Since the Defendant had seven prior f elony convi

c tions, the trial cou

rt classified him a

s a career criminal. As a career criminal convicted of a Class D felony, see Tenn. Code Ann. § 53-11- 402(b)(1), the Defendan t was subje ct to a sent encing range of twelve to sixty years on each of the twelve counts of obtaining a controlled substance by fraud. The trial court sentenced the Defendant to twelve years on each count, w ith co unts 1-4 running concurrently, counts 5-8 running
con curr ent ly, and counts 9-12 running concurrently. Each of the three sets of se ntences, counts 1-4, counts 5-8, and counts 9-12, were to run consecutively with each other. The Defendant thus rec eived
an effective sent

ence of thirty

-six years. T

he Defendant al

so received a fine

of $2,000 on each

count.
II. ANALY SIS A. Sufficiency of the Evidence

The Defendant

first argues that the evidence was not sufficient to convict him of the eleven prior instances of obtaining prescription drugs by fraud in violation of Tennessee Code Annotated § 53-11-402(a)(3). Tennessee Code Annotated § 53-1 1-402(a) provides, in pertinent part, as follows: It is unlawful for any person knowingly or intentionally to:

. . . .

. . . [a]cquire or obtain, or attempt to acquire or attempt to obtain, possession of a controlled substance by misrepresentation, frau d, f or gery, deception or subte rfuge. Any

person who violate

s this subdivision may, upon first convi ction, have such sentence suspended andmay as a condition of the suspension be req

uired to participa

te in
a program of rehabilitation at a drug treatment facility ope ratedby the state or a comprehensive community mental health center. Id. The Defenda

nt argues th

at Agent Biele

arrested him on th

e sole occasion w

hen he sought to fraudulently

obtain prescription drugs and that the evidence presented to support convictions for the other eleven occasions was circumstantial. The Defendant further argues that the jury could not have found him guilty beyond a reasona ble doubt based solely on circumstantial evidence.

When an accused challenges the sufficiency of the evide nce, an appellate court’s standard of review is whether, after

considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele

ments of the crime

beyond a re

asonable doubt. Tenn. R. App. P. 13(e ); Jackson v. Virginia

, 443 U.S. 307, 324 (1 979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985). This rule applies to findings of guilt based upon dire ct evidence, circum stantial evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).-4-

In determining the

sufficiency

of the evidence

, this Court should

not re-weigh or

re-evaluate the evidence. State v. Matthews , 805 S.W.2d 776, 779 (T enn. Crim. App. 1990

). Nor may th

is Courtsubstitute its inferences for those drawn by the trier of fact from the e vidence. State v. Buggs , 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State , 286 S.W.2d 856, 859 (Tenn. 1956). Questions concerning the credi bility of th e witnesses, the w

eight and value

of the evidence

, as well as all factual issues raised by the evidence are resolved by the trier of fact. Liakas , 28 6 S.W .2d at 859. This Court must afford the State of Tennessee the strongest legitimate view of the evidence containedin the record, as well as all rea sonable inferences which may be drawn from the evidenc e. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt

against a defendant
remove s the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a

guilty verdict. Id.

Th e evidence prese

nted during the D

efendant’s tria

l was sufficient b

eyond a reasonable doub t to support the verdict of the jury. Here, the jury heard proof that on the date of the Defendant’s arrest, Agent Biele witnessed the Defendant commit

the alleged off

ense just prior to

arresting him. At the time of his arrest, the Defendant had pieces of paper in his pocket on which the DEA numbers of Dr. Beck and Dr. Mack were written. Furthermore, the Defendant admitted to Agent Biele that he had o btained prescriptions from Eckerd’s prior to this instance. Moreover, Dr. Beck and D r
. Mack confirmed that the names the Defendant had use d we re no t pa tie nts of ei the r do cto r. Fi nal ly, Agent Biele confirmed the existence of a total of twelve fraudulent prescriptions obtained using the two physicians’ names written on pieces of paper found on the Defendant’s person and using patient
names provided by the Defendant to Agent Biele. W e conclude tha t this is sufficient e vidence to support all twelve of the Defendant’s convictions. B. Sentencing

The Defendant argues that the trial court erred in ordering him to serve his sentences
con secu tiv ely. When a criminal defendant challengesthe length, range, or manner of service of a sentence, the reviewing court must conduct a de novo review of the sentence with a presumption that the determinations ma

de by the tri

al c ourt are c orrect. Tenn. Co de Ann. § 40-35-40 1(d). This presumption, however, “is conditioned upon the affirma

tive showing in

the record that the trial court considered

the sentencing

principles and al

l relevant facts

and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 199 1). In the eve nt that the record fails to show such consideration, the review of the sen ten ce i s pu rel y de novo
. State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).

In making its senten cing determina

tion, the trial cour

t, at the conclusion of th e sentencing hearing, determines the range of sentence and then determines the specific sen tence and the pr

opriety of sentencing alte

rnatives by

considering (1 ) the evidence, if any, rec

eiv ed at the tr

ial and the sentencing hearing, (2) the presentence report, (3) the principles of

sentencing and

arguments as to sentencing alternat ives, (4) t he nature and characteristics of the criminal conduct involved, (5) evidence and information offered by the parties on the enhancement and mitigating factors, (6) any-5-

statements

the defendant wi

shes to make in the d

efendant's behalf abo ut sentencing, and (7) the potential for rehabilitati

on or treatment. Tenn.

Code Ann. §§ 40-35-

210(a), (b), -1 03(5); State v. Williams , 920 S.W.2d 247, 258 (Tenn. Crim. App. 1995).

The presumptive sente

nce to be imposed b

y the trial c

ourt for a Class B , C, D or E felony is the minimum within the applicable range unless there are enhancement or mitigating factors present. Tenn. Code Ann. § 40-3 5-210 (c). If there are enhancement or mitigating factors, the court must start at the presumptive sentence, enhance the sentence as appropriate for the enhanc ement factors, and then reduce the sente

nce in the rang

e as appropriate

for the mitigating factors. Id. § 40-35-210(e). The weight to be given

each factor is left to the discretion of the trial judge. Shelton , 854 S.W.2d at 123. However, the sentence must be adequately suppor ted by t he record and comply with the purposes and principles of the 1989 Sentencin

g Reform Act. State v. Moss , 727 S.W.2d 229, 237 (Tenn. 1986).

When imposing a sentence, the trial court must make specific findings of fact on the record sup porting the sentence. Tenn. Code Ann. § 40-35-209(c). The record should also includ e an y enhancement

or mitigating factors applied by the trial court. Id. § 40-35-210(f). Thus, if the trial court wishes to enhance a sentence, the court must state

its reasons on the record. The purpose of recording the court’s reasoning is to guarantee the prepar ation of a proper rec

ord for appellat

e review. State v. Ervin , 939 S.W.2d 581, 584 (Tenn. Crim. App. 1996). Because the re cord in this case indicates that the trial court adequately considered the enhancement and mitigating factors as well as the under

lying fac ts, our review is de novo with a presumption o f correctness.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence af ter hav ing given due consideration and proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately supported by the re cord, then we may not modify the sentenc e "even if we would have preferred a different result." State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the burden of showing the impropriety of the sentence imposed. Ashby , 823 S.W.2d at 169.

In this case, the Defendant challenges the determination of the trial court to run his sentences
con secu tiv ely. The Defendant a rgues that this de

termination by

the tria l co urt is contrary to the purpose of Tenne

ssee Code Annotat

ed § 40-35-102, wh

ich is primarily to

“promote justice.” The Defendant

believes that he should have received a single twelve-y ear sentence to be served consecutive to an

y other sent

ence he might ha

ve had pending a

t the time from othe

r cases.
Whether concurrent or consecutive sentences should be imposed iswithin the sole discretion of the trial court. SeeTenn. Code Ann. §40-20-111(a). A trial court may order multiple sentences to run consecutively if it finds by a preponde rance of theevidence that

one or more of ce

rtain criteria app ly. See Tenn. Code Ann. § 40-35-114(b)(1)-(7). In this case, the trial court applied the following factors: (1) “[t]he defendant is an offender whose recor d of criminal activity is extensive,” Tenn Code Ann. § 40-35-115(b)(2), and (2) “[t]he defendant is sent enced for an of

fense committed w

hile-6-

on probation . . . .” Id. § 40-35-115(b)(6). The trial court found that the Defendant’s history of prior convictions and the commission of all twelve of these crimes while he was on probation warranted the determination that the s entences run co nsecutively . The presentenc e report supports

these determinations by the trial court: The presentence report reve als that the Defendant

has a criminal history of numerous prior convictions and that the Defendant w

as on probation at t

he time that he committed the offenses in this case. We thus conclude that imposition of consecutive sentences in this case was proper. Accordingly, the judgment of the trial court is AFFI RMED.

_____________________

___________

_ RO BERT W. WEDEMEYER, JUDG E