# FILED
October 18, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1999 SESSION

STATE OF TENN ESSEE, * C.C.A. # 03C01-9805-CR-00178

Appellee, * Greene County VS. * Honorable Jam es E. Beckner, Ju dge KENYETTA FIELDS, * (Facilita tion of a Felony)

Appellant. *

FOR THE APPELLANT : FOR THE APPELLEE : GREG W. EICHELMAN (on appeal) PAUL G. SUMMERS District Public Defender Attorney General & Repor ter 1609 College Park Dri

ve, Box 11 Morristown, TN 37813- 1618 CLINTON J. MORGAN Assistant Attorney General FREDICK M. LANCE (at trial) 425 Fifth Avenue North 804 Market Street Nashville, TN 37243-0493 Johnson City, TN 37604 C. BERKELEY BELL, JR. District Attorney General VICTOR VAUGHN Assistant District A

ttorney General 109 South Main Street Greeneville, TN 37743

OPINION FILED: _______________

AFFIRMED IN

PART, MODIFIED, AND REMANDED

JOHN EVERETT WILLIA MS, Judge1 Although the vehicle was reg istered to “S . Fields” rath er than to th e defen dant, the defendant possessed and was in cont rol of t he vehicl e during t he present offense, and law enfo rcem ent o ffice rs tes tified th at the y kne w the defe nda nt an d had seen him drivin g the vehic le in the past . Thus, whil e we refer to the vehicl e as the “defendan t’s,” we recognize that he may not have tec hnically own ed the ve hicle. -2- 

### OPINI ON The defendant, Kenyetta Fields, appeal s his conviction and s entence for facilitation of the sale of cocaine i n an amount greater than .5 gr ams. The defendant argues that (1) the ev idence at trial was i nsufficient to support the jury's verdict , (2) the sentence imposed by the trial court is ex

cessive, and (3) the trial court erred in fai ling to grant an alter native sentence. We AFFIRM the defendant’s conviction and MO DIFY the sentence imposed by the trial court.

BACKGROUND The defendant was arrested pursuant to an und ercover operation in which TBI Agent Mike H annon pur chased 1 .5 gram s of coca ine from a passen ger of a vehicle operated by the defendant. At the outset of the offense, the defendant and his passenger were seated in the defendant’s 1 parked vehicle. Hannon and an informant parked behind them to attempt t o purchase cocaine. The defendant’s passenger, James Henr y Davis, got out of the defendant’s vehicle, approached Hannon, and asked what they wanted. Hannon res ponded that he wanted $250 worth of crack cocaine. Davis then went back to the defendant’s car and got in the front passenger seat. Hannon testified that he observed what he thought was an exchange between Davis and the defendant. Although he did not see anything change hands, Hannon testified that the defendant and Davis engaged in conversation and physical interaction. A few moments later, Davis got out of the defendant’s car, returned to Hann on, and delivered a substance that was later identified as 1.5 grams of crack cocai ne. Hannon paid Davis $260, and Davis took the money back to the defendant’s car. Dav is and the defendant then engaged in a second tran saction, after which Dav is returned to Hannon wi th-3- ten dollars change. The state presented testimony that the sale occurred within approximately 200 ya rds of a school.
Both subjects were subse quently arrested and i ndicted for the sale of cocaine in an amount greater than .5 grams. See Tenn. Code Ann. § 39-17-417. The defendant was tried separately before a jury. At the close of the state’s proof, the defense moved for a judgme nt of acquittal. Finding that the evidence was sufficient to support the i ndictment, the trial court overruled this motion. However, the court did find it appropriate to als o charge the jury on the lesser offense of facilitation. See Tenn. Code Ann. § 39-11-403. The jur y found the defendant not guilty on the indi cted charge but found him guilty of facilitation and imposed a fine of $50,000. The trial cour t then sentenced him to four year s and six months in the Tennessee De partment of Correction.

ANAL YSIS The defendant first submits that th e evidence presented at trial was legally insufficient to support the jury ’s verdict. When a defendant challenges the sufficiency of the evidence, thi s Court must determine whe ther, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential el ements of a crime beyond a reasonabl e doubt. See Jackson v. Virginia , 443 U.S. 307, 319 (1979); State v. Duncan , 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13( e). The appellee is entitled to the strongest legitimate v

iew of the evidence and all reasonable inferences that may be drawn therefrom. See State v. Cabbage , 571 S.W.2d 832, 83 5 (Tenn. 1978).
The credibility of wi

tnesses, the weight of thei r testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclusiv

ely to the trier of fact. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Gentry , 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jur y verdict for the stat

e-4- accredits the testimony of the state’s witnesses and resolves all conflic

ts in favor of the state. See State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). Moreover, a guilty

verdict removes the presumption of innocence enjoyed b y defendants at trial and replaces it with a presumption of g uilt. See State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant chal lenging the sufficiency of the evidence car ries the burden of illustra ting to this Court w

hy the evidence is insufficient to support the verdict. See State v. Freeman , 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996).

Section 39-11-403 of Tennessee Code Annotated provides, “A person is criminally responsi ble for the facilitation of a felony if, knowing that another intends to commit a specific felony , but without the intent r equired for criminal responsibility under

§ 39-11-402(2), the person k nowingly furnishes

substantial assistance in the commission of the felony.” Although mo re might be inferred, it is clear that the defendant prov ided the car that he and Davi s used both as transportation to and from the drug sale and as an office of sort from whi ch to conduct the transaction. This evidence, along with Hannon’s account of the interaction between Dav is and the defendant at each stage of the s ale, was sufficient for a reasonable trier of fa ct to infer that the defendant knew of Davis’ intent. The evidence also su pports the jury’s conc lusion that the defendant knowingly furnish ed substantial assistance to Davis in the commissi on of the sale. Thus, we find the evi dence sufficient to support the jur y’s verdict.

SENTENCING The defendant next argues that his sentence is excessiv

e and that the trial court erred in fai ling to impose an alternati ve sentence. When an accused challenges the length or manner of service of a sentence, it is the duty of th is Court to conduct a de novo r eview on the record “with a presumption that the determinations made by the court from which the appeal is taken are correct.”-5- Tenn. Code Ann. § 40-35-401(d). Thi s presumption “is conditi oned upon the affirmative 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). The appellant carries the burden of showing that his sentence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan , 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
Length of Sentence The defendant is a Range I offender, and facili tation of the sale of cocaine in an amount greater than .5 g rams is a Class C felony

. See Tenn. Code Ann. §§ 39-11-403(b); 39-17-417(c )(1). Thus, the defendant is subj ect to a sentencing range of three to six years. See Tenn. Code Ann. § 40-35-112. The presumptive sentence for a Cl ass C felony is the minimum i n the range, absent enhancement or mitigating facto rs. See Tenn. Code Ann. § 40-35-210(c).
The trial court found applicable as enhancement factors that the defendant has a history of crimi nal behavior in addition to that necessary to establish the appropriate r ange, see Tenn. Code Ann. § 40-35-114(1), and that the offense occurred within 200 yards of a school, see generallyTenn. Code Ann. § 39-17-432 (establishing the area within 1000 feet of school property as a Drug-Free School Zone and providing enhanced penal ties for certain offenses committed within such are a). Based on these findings, an d finding no mitigating factors, the court imposed a senten ce of four and one-half years.
The defendant challenges both enhancements app lied by the trial cour t as well as the trial c

ourt’s rejection of two proposed mitigating factor s: that “[t]he defend ant's crim inal cond uct neith er caused nor threa tened se rious bod ily injury” and “[t]he defendant played a minor role in the comm ission of the offense.” Tenn. Code Ann. § 40-35-113(1), ( 4).2 We note that apply ing the Act would have been pr

oblematic i n any event because as the defendant was not convict ed, as requi red by the Act, of “a

violat ion of § 39-1 7-417 or conspiracy

to viol ate such secti on.” Rather, he was convicte d of facil itati on of a viol ation of 39-17- 417. -6- As to enhancement factor (1), the defe ndant’s presentence report reflects numerous misdemeanor convicti ons and his admission that he use s cocaine. The defendant does not contest the nature or extent of this criminal hi story. However, he argues that because all of his prior convictions were misdemeanors, factor (1) is i napplicable. This argument i s without merit. The language of the enhancement statute does not limit a sentencing c ourt to the consideration of felony conv ictions--or even co nvictions. See Tenn. Code Ann. § 40-35-114(1). Enhancement factor ( 1) may be applied solely on the basis of misdemeanor criminal histor y. See State v. Millbrooks , 819 S.W.2d 441, 446-47 (Tenn. Crim. App. 1991). Thus, the trial court’s applic

ation of enhancement factor (1) was proper.
The defendant next argues that the trial court erred in enha ncing his sentenc e based o n its fin ding th at the offe nse occu rred within 20 0 yards of a school. We agree. The Drug-Free Sc hool Zone Act (“the Act”) establishes the area within 1000 feet of a school property as a Drug- Free School Zone and provides for enhanced punishment--through increased offense clas sification and minimum sentencing--for cer tain offenses committed within suc h an area. See Tenn. Code Ann. § 39-17-432. Althoug h the state’s proof was uncont ested that the defendant committed his of fense within 200 yards of a school, the state did not indict the defendant under the Act.Instead, the state cited v iolation of the Act in its notice to seek enhanced punishment. At the defendant’s sentencing hearing, the trial cour

t correctly conclude

d that, because the state had not properly indicted the c

ase, the court could not inv oke the Act to increase the defendant’s offense classification. 2 Nevertheless, the tr ial court found that the defendant’s violation of the Act w arranted “some consideratio n” and relied upon it to enhance the defendant’s sentence. Because “[t]he factors contained in §§-7- 40-35-113 and -114 are the exc lusive factors whic

h may be considered in setti ng the length of a sentence within a given range,” State v. Dykes , 803 S.W.2d 250, 258 (Tenn. Crim. App. 1990), w e cannot affirm this enhancement.
The defendant next argues that the trial court erred in rejecting his assertions that he neither c aused nor threatened serious bodi ly injury and that he played only a minor r

ole in the commission of the offense. See Tenn. Code Ann. § 40-35-113(1), (4). We find neither factor applicable.
The threat of serious bodily injury is inherent in cocaine use. Thus, this Court has held that mitiga ting factor (1) should not be applied when the defendant is convicted of an offense inv olving cocaine. See State v. Vanderford , 980 S.W.2d 390, 407 (Tenn. Crim. App. 1997); State v. Keel , 882 S.W.2d 410, 422 (Tenn. Crim. App. 1994).
Factor (4) is also i napplicable. As noted above, the evidence is sufficient to support the jury’s verdict that the defendant prov ided “ substantial assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403 (emphasis a dded). This conclusion contradicts the defendant’s asse rtion that he played a minor role in the facilitation.
In summary, we conclude that the trial court proper ly applied enhancement factor (1) and properl y rejected the mitigating factors proposed by the defendant. We cannot, however, affirm the trial court’s further enhancing the defendant’s sentence on the bases of consi derations not included among the factors provided by Tenness ee Code Annotated § 40-35-114. Becaus e the trial court did not indicate the weight it accorded each enhancement, we unde rtake that effort. Unlike the issue of appl icability of the enhancement, her e the extent and nature of the defendant’s criminal history are relev ant. Although lengthy,the3 W e note tha t the legislature has ex pressly fou nd deter rence n ecess ary with rega rd to certain drug offenses com mitted within 1000 feet of a school: “The enha nced and m andatory minimum sentence required by this sect ion for dr ug offenses occurri ng in a Drug-Free School

-8- defendant’s criminal history is relatively minor. We conclude tha t this history warrants a one-year enhancement. Therefore, we modify the def endant’s sentence to four years.
Alternative Sentencing The defendant next argues that the tr ial court erred in deny

ing an alternative sentence. Bec ause he is convicted of a Cl ass C felony, the appellant is presumed eligible for alternative sentencing

. See Tenn. Code Ann. § 40-35- 102. Nevertheless, the trial court found that confinem ent was necessary to avoid depreciating the serious ness of the defendant’s offense and to provide a deterrence to others likel y to commit similar offenses. See Tenn. Code Ann. § 40-35-103(1)(B). The defendant attacks the se findings, arguing that neither is supported by the record.

The need for deterrence cannot be concl usory only, but must be supported by evidence in record indicating that the sentence imposed would have a deterrent effect withi n the jurisdiction. See Ashby , 823 S.W.2d at 170; State v. Bingham , 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). In the present case, the trial court noted, sua sponte, “W e have a terrible problem of crack cocaine here in Greene County.” This finding, howev er, is not supported by an y evidence in the record. Even without such ev idence, the state argues that drug offenses are “deterrable per se.” Although other pane ls of this Court have held precisely that, see, e.g. , Dykes , 803 S.W.2d at 260, such holdings cannot be reconciled with our Supreme Court’s holding i n Ashby ; which, we note, was itself a drug case. Therefore, because the record contains no support ing evidence,
we conclude tha

t confin ement is

not war ranted i n this c

ase on th e basis of a need for deterrence. 3Zone a re nece ssary to se rve as a d eterrent to such u nacce ptable co nduct.” T enn. Co de Ann . § 39-17-432(a). Although t his legi slati ve expression woul d arguably support a concl usion that dete rren ce is n ece ssa ry in the pres ent c ase , given our re solu tion b elow we ne ed no t deve lop th is analysi s. -9- Nevertheless, we affirm the trial court’s finding that confinemen t is necessary to avoid depr eciating the seriousness of the defendant’s offense. For this factor to warrant a sentence of confinement, “‘the circumstances of the offense as committed mu st be especially viole nt, horrifying, sh ocking, reprehensible, offensive, or otherwise of an excessi ve or exaggerate

d degree,’ and the nature of the offense must outweig h all factors favoring a sentence other than confinement.” Bingham , 910 S.W .2d at 455 (quot ing State v. Hartley , 818 S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).

The circumstances of the defendant’s offense are, for the most part, unremarkable. Howeve r, as noted above, the evi dence showed that the defendant committed his offense withi n 200 yards of a sc hool. Wi th its passage of the Drug-Free School Zone Act, the Tennessee legislature emp hatically expressed the seriousnes s of this circumstance in dr ug-related offenses. Our review of that Act pers uades us that the legislatur e considered drug offenses committed within a school zone to be especially reprehensible and offensive. We agree with the trial court that confinement is warranted.

FINE Finally, although not raised by the parties, we note that the defendant’s fine exceeds the statutory limit. The jury imposed,and the trial court approv ed, a fine of $50,000. The maximum allowabl e fine for a Class C felony i s $10,000. See Tenn. Code Ann. § 40-35-111(b)(3 ). Article VI, Section

14 of the Tennessee Constitution provi des that every citi zen has the right to hav e a jury of his peers assess any fine in excess of fifty dollars . Accordingly, thi s Court may not reduce the defendant's fine to corr ect this error. See State v. Martin , 940-10- S.W.2d at 567, 570-71 (Tenn. 1997). However, it is permissible to remand the case for a determination on the is sue of the fine alone, so that the defendant may have a jury ass

ess a fine within the statut ory limits. See id. It is not constitutionally req uired that "the same jury fix the fine that finds the defendant guilty." Id. at 570. Therefore, we remand this case to the trial court w here a new jury shall be empaneled to fix an appropriate fine.

CONCLUSION For the forgoing reasons, the defendant’s conviction is AFFIRMED; his sentence is MODIFIED to four years in the Tennessee Depar tment of Correction, and this case is REMAND ED for a jury to fix th e amount of the defendant’s fine.

_____________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

____________________________ JOHN H. PEAY, Judge

_____________________________ DAVID G. HAYES, Jud ge