IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
STATE OF TENNESSEE v. LARRY WAYNE BURNEY Direct Appeal from the Circuit Court for Montgomery County

No. 39882 Robert W. Wedemeyer, Judge

No. M1999-00628-CCA-R3-CD - Decided April 7, 2000

Defendan t pled gu ilty to possession of drug paraphernalia, assault, resisting arrest, and criminal impersonation. Defendant was a lso convicted in a bench trialof possession of mor e than .5 grams of cocaine with intent to sell. After a sentencing hearing, the trial court imposed a sentence of

eleven y ears for the cocaine possession conviction as well as sentences of various lengths for the other convictions. Defendant challenges his conviction for possession of cocaine as well as the lengths of his sentences. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed
W OODALL , J., delivered the opinion of the court, in which S MITH , J., and L AFFERTY , S.J. joined.
Michael R. Jones, District Public Defender, and Charles S. Bloodworth, Assist ant Public Defender, Clarksville, Tennessee, for the appellant, Larry Wayne Burney.
Paul G. Summers, Attorney Genera l and Reporter, Cli

nton J. Morgan, Assi

stant Attorney Ge

neral, John Wesley Carney, Jr., District AttorneyGeneral, and Lance A. Baker, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
J UDGE W OODALL delivered the opi nion of the court.
Defendant

Larry Wayne Burney pled guilty in the Montgomery Coun ty Circui t Court to Class A misdemeanor pos session of drug pa raphernalia, Cla

ss A misdemeanor a

ssault, Cla ss B misdemeanor

resisting arrest, and Class B misdemea nor criminal imper

sonation. Immedia

tely thereafter, Defendant proceeded to a b en ch trial on charges of Class B felony possession of more than .5 grams of cocaine wi th intent to s ell and Class A misdemeanor possession of a prohibited we apon. However, the State dismissed the weapon possession charge at the close of the proof

. Following the bench trial, Defendant was co nvicted of th e cocaine possession offense. After a sentencing hear

ing, the trial cour

t sentenced Def

endant as a

Range I standard

offender to

terms of eleven years for the Class B felony, eleven months and twenty-n ine day s for each Class A-2-

misdemeanor, and six months for eac h Class B misdemeanor. Defendant raises the following issues in this appeal:(1) whether the evidence was suff icient to support his conviction for possession of more than .5 grams of coca ine with intent to se

ll; and (2) whethe

r the trial court e

rroneously

imposed longer sentence

s than he deserve

s for his five conv

ictions. After a review

of the record, w

e affirm the judgm

ent of the trial co

urt.
I. FACTS
Officer Jason Kuhns of the Clarksville , Tennessee Polic

e Department tes

tified that while

he was in his patrol vehicle a t approximately 2:0

0 a.m. on February 22, 1998, he observed Defendant standing on a street corner. When Kuhns stopped his vehicle and visually scanned the area, Defendant

immediately turned around and walked away. Kuhns then drove away and continued his patrol of the area. During the next hour and a half, Kuhns observed Defendant approximately eight different times at the same intersection where he had first been observed. Kuhns observed that each time he drove near Defendant, Defendant acted “very evasive” by immed

iately putting his

hands in his pockets and walking away.
Officer Kuhns testified that he eventually approached Defendant and asked whether he lived in the area. When Defendant began yelling and “took a defensive stand,” Kuhns asked Defendant for some identification. Defendant then stated that he did not have any identification and he provided Kuhns with a fictiti ous name. At this poin

t, Kuhns became suspicious because Defendant refused to take his hands ou

t of his pockets. Kuhns then attempted to frisk Defenda

nt for weapons, but Defendant struck Kuhns in the head and ran away from the scene.
Officer Kuhns testified that after a brief chase and violent struggle, he was able to apprehend Defendant. When Kuhns subsequently searched Defendant, Kuhns found $37.00 in ca sh, a pi ll bottle thatcontained what a ppeared to be ei

ghteen rocks of c

rack cocaine,

and a film

canister that containedwhat appeared to be two large rocks of crack cocaine. When Kuhns recovered the jacket that Defendant had discarded during the chase, Kuhns found a “straight shooter” crack pipe and a cleaning pad that can be used to smoke crack in conjunction with the pipe. Kuhns also observed an ice pick that was l

aying on top of the ja

cket.
William Stanton of the Tennessee Bureau of Investigation testified he tested the substances in the film canister

and pill bottle. Stanton determined that the film canister contained .5 grams of cocaine base and the pill bottle contained 2.0 grams of cocaine base.
II. SUFFICIENCY OF THE EVIDENCE
Defendant

contends that the evidence was insufficient to support his conviction for possession of more than .5 grams of cocaine with intent to sell. We disagree.
When reviewing the trial court's judgm ent, this Court will no

t disturb a verdic

t of guilt unless the facts of the record and inferences which may be drawn from it are insufficient as a matter of law fora rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v

.-3-

Virginia , 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1 979); State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this Court does not reweighor reevaluate the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this Court substitute its inferences for those drawn by the trier of

fact from circumstantial evidence. Liakas v. State , 199 Tenn. 298, 305 , 28 6 S.W.2d 856, 859 (19 56). To the contra

ry, this Court is required to afford the State the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evide nce. State v. Tuttle , 914 S.W.2d 926, 932 ( Tenn. Crim. App.199

5). Since a verdi

c t of guilt r

emoves the presumption of a defendant's innocence and replaces it with a presumption of guilt, the defendant has the burden of proof on the sufficiency of the evidence at the appellate level. Tuggle , 639 S.W.2d at 914.
Defendant

concedes that the e viden ce was sufficient to prove that he was in possession of more than .5 grams of cocaine. However, Defendant contends that the evidence was ins ufficient to prove that he intended to sell the cocaine. Thus, Defendant asserts that he should have been convictedof Class A

misdemeanor simple

possession for personal use, see Tenn. Code Ann. § 39- 17-418 (1997), rather than Class B felony possession with intent to sell, see Tenn. Code Ann. § 39- 17-417(c)(1) (Supp. 1999).
In itially, we note that Tennessee Code Annotated section 39-17-419 provides, in releva n t part: It may be inferred from the amount of a controlled substance or substances possessed by an offender, along with other releva nt facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. Tenn. Code Ann. § 39-17-419 (1997).
We conclude that

when the evidence is viewed in the light most favo

rable to the State

, as it must be, the evidence was sufficient for a rational trier of fact to f

ind beyond a reas

onable doubt that Defendant

possessed the coc

aine with intent to s

ell it. The evidenceestablished that Defendant was standing at a Clarksville inters ection betwee n 2:00 and 3:30 a.m. in the latter part of February. Approximately

eight different times during that hour and a hal f, Defenda nt immediately walked away whenever Officer Kuhns approached and then returned to the same intersection when Kuhns left the area. When Defendant was searched shortly after he struck Kuhns a nd fled the scene , th e police discovered that Defendant had 2.5 grams of cocaine base that was divided into two large rocks and ei ghteen smaller ro

cks that were stor

ed in two separat

e containers. De

fendant als o ha d approximately

$37.00 in cash on his person. This evidence was sufficient for a rational trier of fact to infer that Defendant

intended to sell the cocaine. Although there may have been some evidence to the contrary, the

trier of fact re

jected it. In shor

t, we conclude that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Defendant possessed the cocaine with intentto sell. See, e.g. , State v. Larry G. Hart , No. 02C01-9 406-CC- 00111, 1995 WL 380108, at *3 (Tenn. Crim. App., Jackson, June 28, 1995) (holding tha t in vie w of all the circumstances, the evidence that defendant possessed 1.0 gram of cocaine base divided into eighteen individual rocks was sufficient to supp

ort a conviction for possession of cocaine with intent to sell). Defendant is not entitled to relief on this issue.-4- III. LENGTH OF SENTENCES
Defendant

contend s that the trial court erroneously imposed longer sentences than he deserves. We disagree.
“Whenreviewing sente

ncing issues .

. . including the granting or denial of probation and the length of sentence, the appellate court shall conduct a de novo review on

the record of suc

h issues. Such review shall be conducted with a presumption that the determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401( d) (1997). “However, the presumption of correctn

e ss which accompanies the trial court’s action is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principle s and all r elevantfacts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting our revie w, we must consider all the evidence, the presentence report, the sentencing principles,the enhancing an d mitigating factor

s, arguments of co

unsel, the defendant’s

statements, the nature and character of the offense, and the defendant’s potential for rehabilitation. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1997 &Supp. 1999); Ashby , 823 S.W.2d at 169. “The defendant has the burden of demonstrating that the sentence is improper.” Id. Because the rec ord in this case indica tes that the trial court considered the sentencing principles and all relevant fac ts an d circumstances,

our review is de n

ovo with a presumpt

ion of correctne

ss. The sentence for a Rang e I offe nder convicted of a Class B felony is between eight and twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (1997). If the court finds that enhancement and mitigating factors are applicable, the court must begin

with the minimum and enhance the sentence to appropriately r

eflect the weigh

t of any statuto

ry enhance ment factors and then the court must reduce the sentence to appropriately reflect the weight of any mitigating factors. Tenn. CodeAnn. § 40-35-210(e) (

Supp. 1999). In add

ition, the sentenc

ing range for a Cl

ass A misdemeanor

is any period up to eleven months a nd twenty-nine da

ys and the sentenc

ing range for a Cl

ass B misdemeanor is any period up to six months. Tenn. Code Ann. § 40-35-111(e)(1)–(2) (1997).
The record indicates that in determining the lengths of

Defendant’s sentences, the trial court found that the following enhancement factors applied: (1) Defe ndant has a previous history of criminal convictions or cr iminal behavior in a

ddition to those

necessary to est

ablish the appropr

iate sentencing range, and (8) Defendant has a previous histor y of unwillingness to comply with the conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(1), (8) (1997). The trial court also found that mitigating factor (13) applied because Defendant saved time and expense by pleading guilty to some of the charges and waiving a jury trial on the remaining charges. See Tenn. Code Ann. § 40-35-113(13) (1997). In addition, the trial court found that the enhancement

factors were e

ntitled to “a treme

ndous amount of wei

ght,” but the mi

tigat ing factor was entitled to enough weight to warrant less than the maximum sentence for the Class B felony conviction.
Defendant

does not challenge the application of enhancement factor (1), and we conclude that it was properly applied. Indeed, the presentencereport indicates that Defendant’s prior criminal record consists o

f approximately f

our felony convic

tions and sixteen mis

demeanor convic

tions.-5-

Defendant

similarly does not challenge the application of enhan ceme nt factor (8), and we conclude that it was properly applied. Indeed, Defendant stipulated during the sentencing hearing that he had rece

ived and then viola

ted probation in thr

ee different c

ases. The Sta te does not challenge the trial court’s decision to apply mitigating factor (13), tha t Defendant

saved time and expense by pleading guilty to some charges and waving a jury trial on the other charges. We conclude that under the unique facts of this case, the trial court properly applied this mitigating factor.
Defendant

does challenge the trial court’s failure to apply mitigating fa ctor ( 1), that his conduct neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1) (1997). We conclude that this factor did not apply to the sentence for possession of

cocaine because, as this Court has previ

ously stated, this fa

cto r is in applicable in cases involving cocaine. State v. Va nderford , 980 S.W.2d 390, 407 ( Tenn. Crim. App. 199

7); State v. Keel , 882 S.W.2d 410 , 42 2 (Tenn. Crim. App.1994). We also conclude that under the facts of this

case, mitigating factor (1) didnot apply to the sentences for assault, resisting arrest, possession of drug pa raphernalia, and criminal impersonation.
Defendant

also challenges thetrial court’s failure to apply mitigating factor (13), that he did notpossess a dangerous weapon during the commission of the offenses. See Tenn. Code Ann. § 40- 35-113(13) (1997). We conclude that Defendant was not entitled to any mitigation of the length of his sentences merely because he did not possess a danger ous weapon when he committed the offenses in this case.
In short, we conclude in our de novo review that two enhancement factors and one mitigating factor applied t

o each of Defen

dant’s sentence

s. Under these circumstances, especially in light of Defendant’s extensive crimina l record, we hold

that the trial cour

t i mpose d appropriate sentences for the offenses in this case. Defendant is not entitled to relief on this issue. Accordingly, the judgment of the trial court is AFFIRMED. Woodall, J. Smith, J. Lafferty, S.J.