# FILED

Au gust 21, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE CR IMINA L COURT OF A PPEA LS OF TENN ESSEE AT JAC KSON MARCH 1997 S ESSION

STA TE OF TENN ESSEE, ) ) Appellee, ) C.C .A. No. 02C01- 9602-CC-00069 ) vs. ) Har din County ) JERRY BLA

YLOCK , ) Hon. C. Creed McGinley, Ju dge ) Appellant. ) (Pos session of Contr olled ) Substances) ) )

FOR TH E APPEL LANT: FOR TH E APPELLEE:
RICHARD W. DEBE RRY (On Appeal) JOHN KNOX WALKUP Assistant Publ ic Defender Attorney General & Rep orter 24th Judicial District P.O. Box 663 ELLEN H. POLLACK Camden, TN 38320 Assistant Attorney General 450 Ja mes R obe rtso n Pkwy. STEPHEN HALE (At Trial) Nashv ille, TN 37243- 0493 Attorney At

Law P.O. Box 331 ROBERT RADFORD Bolivar, TN 38008 Dist rict Attor ney General P.O. Box

686 Hunting don, TN 38344-0686 JOHN OVERTON Assi stant Dist. Attorney Gen eral Main Street Savannah, TN 38372

OPINION FILE D: _____________
AF FIRMED CURWOOD W ITT, JUDGE

OPINION2 The defendant, Jerry

Blaylock , appeals the conv iction and sentence he received in the Circuit Court of Hardin County. The indictment al leges as count (1) possession of coca ine with intent to manufact ure, deliver, or sell, a Class B f elon y, and as count (2) possession of mar ijuana, a misdemeano r. The j ur y convicted the defendant on both count s and determined that fines in the amount of $75,000 on count (1) and $1,250 on count ( 2) were appropriate. After a sentencing hearing, the court impos ed the fines and ordered a mi d-Range I s entence on count (1) often ye ars a nd th e ma ximum sent ence on co unt ( 2), e leven mon ths, twent ynine days, to run concurrently. The trial court declined to orde r any form o f alterna tive sente ncing.

On this appeal, the def endant makes the f ollowing arguments: (1) The evidence i s ins uffic ient to support the convictions, especia llyt he felony conv iction of posses sion wit h intent to deli ver cocaine. (2) The defendant’s consti tutional rights were viola ted thro ugh the state’s use of a pere mptory challenge of a juror. (3) Awitness

for the state impr

operly co mmunicated prejudicia l hea rsay e viden ce th rough his te stim ony. (4) A law enforcement off icer improperly destroyed evidence that may have been exculpative. (5) The court erred in itsuse of enhancing factors, itsfailure to applymitigatingfactors, and in its fai lure to al low alt erna tive senten cing.

After a thorou gh review

of the record on appeal , includinga transcri pt of the evidence pr

esented at the trial and at the sentenci ng hearing , we concl ude that the defendant’s appeal is meritles s. The judgment of the trial court is affirmed in all respects.3 In view of the issues r

aised, a short

statement ofthe facts of this case is in order. The cocaine charg e (count ( 1)) a nd the marijuana charge (count (2))
arose from separate incidents. The coca ine arrest occurred on F ebruary 6, 1994. Acting on information sup plied by various informants, officer Brian H uggins of the 24th Judicial District Drug Task F orce, accompanie d by a second officer, entered
a Savannah apart ment during the early mor ning hours. The tenant-occupant of the apartment, Patrice Irvin, consented to the entry and accom panied the off icers whose pur pose , asanno unce d to M s. I rv in, was to l ocat e thedefe ndant and investig ate his alleg ed drug activity. Ms. Irvin showed the office rs to a bedroom in the apartment. The officers turned on the li ghts and found the defendant and a female companion, Cass andra Porter, both unclothed and asleep in t he bed. Upon waking, the defendant reached for, and accordingto at least one of the o fficers , grabbed a pair ofblack trous ers thatwas ly ing near the defendant’s side of the be d. The defendant then stated that the pants were not

his and threw them aside. There
were no other gar ments present, and the defendant wrapp ed a t ow el around hims elf. Officer Hugg ins picked up the black tro users, w hich were accessori zed by
a belt that bore the name “Jerr y,” and di scovered a

rock of crack cocai ne. That item becameth e basis for count (1) in the indictmen t. According to the toxicologist’s testimony, t he rock consi sted of 6.2 grams of cocaine.

Count(2) aro se out of an earli er stop of the defendant’s vehicle by Officer Huggins on November 10, 1993. Reacti ng to an informant’ s tip, the officer stopped the vehicl e driven by the defendant and asked for and received consent to search the automobile. The officer found a small amount

of marijuana in the trunk.

The two c oun ts were tried toget her. In ad diti on to the t esti mon y o f Huggins and the office r who assisted in the arrest in the Irvin apartment, Irvin and Porter testified. Irvin confirmed the officers ’ account of the entry into the apartment and the discovery of the cont raband.4 Officer Huggins testified that, b ased upon his ex per ience as a drug enforcementofficer, the stre et value of the l arge rock found i n the defen dant’s tr ousers pocket would be in the aggregate $1,500 to $2,5 00, based upon it bein g divided into smaller

rocks that could be sold as $25, $50, or $100 uni ts. The toxicologisttestified that, b ased upon approx imately 1,500submissions of cocaine which she had tested i n the laborator y, the average quant ity per s ubmission was .10 gram. At 6.2 grams, the r ock submitted to

her in the d efe nda nt’s case was sixt y-two times larger than the average rock she typically tests.

Ms. Porter testi fied as a defense witne ss that on Febr uary 5, 1994, the defendant pawned a televis ion set, rai sed $250 to $300, and went to Jackson to buy cocaine. She testified s he had been a cocain e addict for eig ht years, the defendant had been and was still her b oyfr iend , and they s moke d cra ck to geth er eve ry day. She stated that they

intended to smoke the crack that t he defendant purchased on February5, t hat t hey did smokecrack on that day, but that

she had not seen th e rockthat wasfound in the pants poc ket. She testi fied that she uses t wenty t o thirty twenty- dollar

rocks per d ay. At one point she said that the d efendant use d a like amount, but later in her testi mony she denied saying that.

In addit ion, the defense cal led a drug r ehabilitation counselor w ho testified that during May and par t of June, 1994, the defendant r eceived dr ug rehabilitati on at True Recovery A&D Treatment Center, w here the wi tness wor ked. He stated the defendant had ad dictions tomarijuana and c rack cocain e. He further sta ted that som e crack addic ts use five t o ten rocks per day. In hi s opinion, a person could not fun ction after using that much crack.

The evidence reflects thatthere were no drug parapher nalia found on
or about the defe ndant’s perso n nor in the apar tment where hewas dis covered.5

Also, a search of his personal effects from the scene reveale d no significant amounts of cash.

The trial court conduct ed a sentencing hearing on S eptember 16, 1994. The presentence report, contained in the technical record s ubmitted by the trial court cler k, reflects that the defendant had a prev ious conviction record consisting of two misdemeanor convicti ons for possessi on of a weapo n, a misdemeanor

convicti on for flight to avoid arrest, a convi ction for driv ing wi thout a valid driver’s license, and a convict ion for viol ating the vehicle reg istration l aw. The trial court approved the fines as fixed by the jur y and imposed concurr

ent sentences of ten years on count (1) ( a Class B felony , Range I) and eleve n mo nths , twen tynine days on Cou nt (2). The ten-year felony sentenceis the midpoin t of the applicable range of eight to twelve years. The court below enhanced the sentence abo ve the minimum based upon findings that the de fendant has a pre vious history of criminal convicti ons or cri minal behavi or and that there were no mi tigating factors. The co urt decli ned to o rder any f orm of alterna tive sente ncing.

I. Suffici ency of the Ev idence.

When an appeal chall eng es th e sufficiency of theevidence, t he standard of review

is whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact cou ld have found the es sential elements of the crimebeyond a reas onable doubt. Jackson v. Virginia , 443 U.S. 307, 318 (1979); State v. Evans , 838 S.W .2d 185, 190-91 (Te nn. 1992); Tenn. R. App. P. 13(e). On appeal, the state is entitled to the strong est legiti mate view of the evidence and all
reaso nable or legit imate inferences w hich may be dr awn therefrom. Stat e v. Cabbage , 571 S.W.2d 832, 835, (Tenn. 19 78 ). This cour t will not re-weigh the evidence, re-eval uate the evide nce, or substituteits evidentiary inferences for those reached by t he jury. State v. Carey , 914 S.W .2d 93, 95 (Tenn. Crim. Ap p. 1995). Furthermore, in a crimi nal trial, great wei g ht is giv en to the resul t reached by the6

jury. State v. John son , 910 S.W .2d 897, 899 (Tenn . Crim. App. 1995).

Once approved by the trial court, a juryverdict accredits the witness es presented by the stat e and resolves all conflic ts in favor of the sta te. Stat e v. Williams , 657 S.W .2d 405, 410 (Tenn. 1983) . The credibil ity of w itnesses, the weight to be give n their testi mony, and the reconciliati on of conflicts in the proofare matters entrusted exclusivel y to the jury as trier of fact. State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 19 84). A jury’ s guilty verdict removes the presumption of innocence enjoyed by

the defendant at trial and raises a presumption of gui lt. State
v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 198 2). The defendant then bear s the burden of overcomingthis presumpti on of guilt on app eal. State v. Bla ck , 81 5 S.W .2d 166, 175 (Tenn . 1991).

A crime may be established by direct ev idence, circumstantial evidence, or a combinati on of the two. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987 ). Bef ore a n acc used may b e convict ed of a criminal offense based upon circumstanti al evidenc e, the facts and the circumst ances “must be s o strong and cogen t as t o excl ude every o ther reas ona ble h ypoth esis save the guilt o f the defendant, and that beyond a reasonab le doubt.” State v. Crawford , 225 Tenn. (3 Pack) 478, 482, 470 S.W .2d 610, 612 (1971). “A web of gu ilt must be woven around the defendant from whi ch he cannot escap e and from whi ch fa cts and circumstances the jury could draw no other reasonable inference save the guilt of the defenda nt beyond a reasonable dou bt.” Id . at 484, 470 S.W.2d at 613.

The offense alleged as count (1) in the indictment is set forth in Tennessee Code Annotated sec tion 39-15-417 ( a) (4) (Supp. 1996), whereby it “is
an offense for a defendant to know ingly . . . possess a controlled substance w ith intentto manufacture , deliver or sell such contro lled substance.” Cocaine is a controlled substance. Tenn. C ode Ann. § 39-17-408 (1991) . Count (2) indicted the defendant under section 39-17-418 (a), whe reby it “ is an offense for a pers on to7

knowingly

possess or casually exchange [marijuana].” Te nn. Code Ann. § 39- 17- 418 (a), (b) (Supp. 1996).

The evidence i s cogen t and o verwh elming that t he defendant posse ssed co ntrolled substances as all eged in both counts of the indict ment. However, the defendan t focuses his appellate argument not on proof of possession, but on the sufficiency

of proof of his intent t o possess coca ine for delivery. Und er the Code, simple k nowing possession i s a Class A misdemeanor, w hile the crime of which the defendant was convicted, possession with intent to deliver, is a Class B felony. See Tenn. Code Ann. § 39-17 -418(a), ( c) (Supp. 1996); § 39-17- 417(c)(1) (Supp. 1996). Section 39-17 -419 provides: It may be inferred from the amount of a cont rolled substance or sub stances posses sed by an offender, al ong wit h other relevant fact s surroundingthe arrest, that the control led substance or substances were poss essed wit h the purpose of selling or otherw ise dispensi ng. It m ay be i nferred from circumstances

indi cating a casual e xchange among individuals of a small amount of a controlled substance or substa nces that the controlled subst ance o r substances so exchanged were p ossessed not with the purpose of selling or otherw is e dispensing in viol ation of th e provisions of § 39-17-417 (a). Such inferences shall be transmitted to the jury by the tri al judg e’s c harge, and the jury w ill consi der such inferences along wi th th e nat ure of t he substance posses sed when aff ixing t he pe nalt y. Tenn. C ode Ann. § 39-17-41 9 (1991). The tr ial court c harged the ju ry w ith t h e inf ere nce contained in th e first sentence of section 39-17- 419. The second inferenc e, arisi ng when a small amount of cont rolled substances is casually exchanged, was not charged. Presumably , this porti on of the statute was omitte d because there was no proof of any exchange, casual or otherw ise.

Applying the appropriat e stand ard o f review and assessingthe evidence in the lig ht most favorabl e to the stat e, w e fi nd sufficient evidence justifyingany

rational trier of fact to conclude bey ond a reasonable do ubt that the defendant possessed cocaine with intent to deli ver the sub stance. Based upon the amount of cocaine seized--a large amount, acco rd ing to two experie nced witnesses- -the state was entitled to the inference setforth in the first sentence of Tennessee8

Code Annotated section 39 -17-419. W hile the proof sugg ests thatthe defendant had a crack cocaine habit, the proof is lacking as to how prodigious his habit was. The only proof submitted came through the testimony of Ms. Porter. Not only were her statements conflic

ting, but her

testimony w

as vulnerable to the jur y making critical credibili ty

judgments. Thedefendant did not testi fy. Being constrained to not reweigh the evidenc e and not substit ute our evi dentiary i nferences for those made bythe jury , we concl ude that the defendant has n ot c arried his burden of overcomingon appeal the pres umption ofguilt that arose upon his conviction in this
case.
II. Constitutional Infringement: Peremptory Juror Challenge Exercised by

the State.
During the voir

dire of the venire members, one juror, Ms. Stackings,
a black female, res ponded to questi ons about being acquainted w ith prospe ctiv e witnesses

by statin g that she had p layed softball in the past wit h on e of the pr ospe ctive wi tnes ses and t hat t he tw o we re “ sti ll fr iend s.”When asked i f t h e relationship would caus e her to gi ve an inord inate amount ofweight to the witness’s testimony , Ms. Stacki ngs repli ed twice, “I don’t know , it might. ” The court then examined Ms. Stackings and determined that s he could adequat ely disr egard the personal relationshi p in consider ing the facts pr esente d in evidence and declined to excuse her for cause. After the venire was examin ed, the state peremp torily challenged Ms. Stackings. The trial court called counsel t o th e bench for a conference ou t of the hearing of the prospective jurors. The judge no ted the fact that Ms. Stacki ngs is bl ack and that the defendan t is black

and inquired if the district attorney had a race-neutra l reason for challenging this juror. The distric t attorney said, “She is a fri end of a person w ho may tes tify .” The distr ict attorney further stated that whil e the witnes s might not be u sed, she was under subpoena. The defense objected to the u se of this chall enge, but the trial court over ruled the objection and or

dered the jury

selection to be resumed.9 In Batson v. Kentucky , 476 U.S. 7 9, 106 S. Ct. 1712, 90 L.Ed.2 d 69 (1986), the United States Suprem e Court held that the state’s use o f peremptory
c hallengesin the jury selection pr

ocess to intent ionally exclude ju rors of th e defendant ’s race vi olates his r ight to eq ual protectio n under the Four teenth Amendment to the U.S. C onstitu tion. A prima faci e case of purposeful di scriminati on could be established by the defendant show ing that the defendant wasa member of a “cognizable raci al group,”that the state exercised its challenges

to exclude members of the defendant’s race, and thatall of the rel evant circumstances raised
a n inf erence that the state used the perempt ory chall enge to exc lude potential jurors because of their r ace. 476 U.S. at 96, 106 S.Ct. at 1723. If th e defendant is able to establish a prima facie case of intentional discrimination against pros pect ive jurors from his own race, the state must then show there was a ra ce-neutral r eason forthe challenge( s). 476 U.S. at 97, 106 S.Ct. at 1723. The explanati on does not have to rise to the le vel justif ying a challe nge for cause. In det ermining theissue, the trial cour

t examines th e “totality

of the relevant facts.” State v. Bell , 759 S.W.2d 651, 653 (Tenn. 19 88). Such facts may incl ude the number of members of the defendant ’s race that were exclu ded through the state’s chal lenge, but se e Sta te
v. Brown , 915 S.W.2d 3, 8 (Tenn. Cri m. App. 1995) (cautioningthat numbers alon e are not conclusive), whether th e state failed to exhau st its perempt ory chall enges while leaving members of the defendant’s r ace on t he jury panel, State v. Butl er , 795 S.W.2d 680, 687 (Tenn. Crim. App. 1990) , or whether the challenged venire members exhibited or acknow ledged some ra ce-neutral at titude or relationship so that the state was justified in fearing hi s or her anti pathy to the pr osecution. Id .; State v. Smith , 893 S .W.2d 90 8, 914 (Tenn. 1994); Brown , 915 S.W.2d at 9. However, we poi nt out that the exerci se of “even one p eremptory c hallenge in a purposefully discriminatory manner would violateequal protection.” State v. El lison , 841 S.W .2d 824, 827 (Tenn. 1992). In p assing, we note that in 1991 the United St ates Supreme Court modi fied Batson by deleti ng the req uirement that th e defendan t and the wr

ongfully excluded juror s must be of the same r ace. Powers
v. Ohio , 499 U.S. 400, 111 S.Ct. 1364, 113 L. Ed. 2d 411 (1991). In Georg ia v.10

McCollum , 505 U.S. 42, 112 S .Ct. 2348. 120L.Ed.2d 33 (1992) , the Supreme Court further amplified Batson by

requiri ng that the defendant ’s peremptory challenges be subj ect t o equ al pro tect ion s crut iny.

On appellate rev iew of

the trial cour

t’s findings

regardingthe Batson issue, we “cannot

substitute our

judgment for that

of the trial court or decl are error absenta finding that the trial judge abused his or her discretion.” State v. M atthew L. Moates , No. 03C01-9610-CR-00383, slip op. at 5 (Tenn. C rim. App., Knox ville, June 24, 1997).

Guided by the foregoing pr inciples, we find no abuse of discr etion in the trial cour

t’s rulin g thatno purposeful dis crimination occurred. Indeed, the record fullysupports a findi ng that, not only was the state’s single c hallenge of a bl ack juror based on a race- neutral factor, but the defendantfailed to establi sh even aprima facie case of purposeful discriminat ion.

II I. He ar sa y.
During the state’s direct examination of Officer Huggins, the witness began to d escribe the i nformation given to him by an informant about th e defendant ’s alleged dr ug sales. Defense counsel i nterposed a hears ay objecti on which was sust ained, and the tr ial court ann ounced that the w itness may not “state whatsomeone else told him.” La ter in his testimony, Officer Huggi ns was ask ed how he came intocontact w ith Patrice Irvin. He responded, “She was seen in the vehicle that the informants had to ld me that Mr. Blaylock would be i n, that he was selling crack out of.” A further objection was made and was sustained, but the trial
cour t gave n o adm onit ory or l imit ing in stru ctio ns to the j ury.

The state argues

that the reference to the defendant sell ing drug s was not hearsay because it was not offered to prove the t ruth of the matter asser ted by11

the absentdeclara nt, citin g State v. Ca ughron , 855 S.W.2d 526 (Tenn. 1993). See Tenn. R. Evid. 801(c), 802. The difficulty w ith the state’s argument is that there was no other reason for

offering the state ment other than to s uggest that the defendant had been sellingcrack from a vehicle. See Neil P. C ohen, et al, Tennessee Law of Evidence § 801.3 (3d ed. 1995 ). Ifeven relev ant to the quest ion being answered, the comment was g ratuitous, and we must bear in mind that

the person testi fying
was the prosecuting office r. There was no other re l evant reason for the offered information except to s how that the defendant sold crac k from this vehicle, and for a such a purpose, the evidence depe nded upon the credibility and/or accu racyof the absent declar

ant.

Acco rdin gly, we conclude that the commen t was object io nable hea rsay, but we further hold that the injection of this comment washarmless error. The defense elicited information from this witness that, on different occasions when the defendant came to Savannah, the officer had received fifty to sixty calls from persons who clai med that the defendantwas deali ng in drug s. Even thou gh the witness acknowled ged thathe had never effected a “buy” from the defendant and had obtained no other proof of the defendant selli ng drugs, the infusion of the volu me of informant s’ tips tends to overwhelm and minimaliz e the hearsay statement, relegati ng the admissi on of the statement toharmless err or. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a ). See e. g. , Caughron , 855 S.W.2d 526. State v. Summerall , 926 S.W.2d 272, 278 (Tenn. Crim. App . 1995); Marsh v. State , 561 S.W.2d 767 (Tenn. Crim. App. 1977) ; Snowball v . State , 477 S.W.2d 240 ( Tenn. C rim. App. 1971). Furthermore, we observe that, in th e same crossexa mination that elicited the fact of a large number of inform ant tips, defense counsel was effective in extracting the w itness’s admi ssion tha t no p roof of any actual sale of drugs

had been obtained, des pite all of the informant acti vity and the int ense inves tigation of the defendant that had been ong oing for some ei ght months. The record reflects a palpab le suggestion that the informa nts’
c ommunicationswere contrived, or at least unreliable, thereby diminishin g th e1 Officer Hugg ins acknow ledged at one poi nt in cross examination that, during the operation, conversations were recorded, bu t he then testified, “T here were no tr

ansactions on th ose tapes.” When asked if the tapes contained statements wherein the def endant said, “I don’t sell drugs,” the of ficer stated, “No sir,” and t hen the officer testi fied there wer e no convers ations wi th the defendant on any of the tapes. The officer indicat ed that any tape s that had been used to try to ens nare the defendant in a drug sale h ad “probably ” been destroyed. The matter was not further pursu ed, and no proof concer ning the ex istence and/or destruction of the tapes was t endered by ei ther party throughout thetrial or at the hearing on the motion f or new trial. 12 impact of the insertion of ina dmissible hearsay evidence. Accordingly, the issue is meritless.

IV. Destruction of Exculpatory Eviden ce.

The defendant ass erts that he was prejudiced by the destruction of audio tapes which may

have p reserved the defendan t’s statements that he did not sell drugs, allegedl y made in re sponse to an undercover soli citation to buy drugs from him. Of fice r Huggins admitted that attempts ha d been made to equip informants/undercov

er-op erati ves with tape recorders i n order to re cord a sale of drugs by the defendant to an informan t/operative. However, the recor d does not reflect that any recording of the defendant was ever made. 1 Thu s, we re solve the issue by concluding there was no factual basis in therecord for findi ng that the st ate failed to discl ose or destroyed exculpati ve evi dence.
V. Sentencing.

The defendant com plains that the trial court improperl y d etermined the length o f this se ntence and fa iled to gra nt alter native se ntenci ng.

When there is a c hallenge to t he length, range, or manner of service of a sentence, it is the duty of this court t o conduct a de no vo review of the record with a pres umption that t he deter mi nations made by the tr ial court ar e correct. Tenn. Code Ann. §40-35-401(d) (199 0). This presumpti on is “condi tioned upon the13

aff irma tive showing in the recor d that the tria l court cons idered the sen tencin g principles

and all relevant facts and cir cu mstances.” State v. Ash by , 823 S.W.2d 166, 169 (Te nn. 1991). “The burden of showing that the sentence is improp er i s upon the appellant.” Id . at 169. In the event th e record fails to demonstrate the required consideration by the trial court, review of the sentence is pure ly de no vo . Id

. If appellate rev iew reflec ts the trial court properly considered all relevant factors and its findi ngsof f act are adequately supported by the record, this cou rt must affirm the sentence, “e ven if we would have preferred a different result.” Stat e v. Fletcher , 805 S.W .2d 785, 789 (Tenn . Crim. App. 1991).

In the absence of

en hancement and mitig ating factors , the pres ump tive length of sentence of a Class B, C, D, or E felony is the minimum sentence in the statutory range w hile the pres umptive leng th of sentence for a Class A felony is the midpoint in the statut ory range. Tenn. Code Ann. §40-35-2 10(c) (Supp. 1996). W here one or more enhan cement factors an d no mitigating factors exist, the trial court may sentence a bove the presumptive sentence but still within the range. Id . §40-35-210(d). W here both enhancem ent and mitigating factors app ly, the trial court must star t at the minimum sen tence, enh ance the sentence within the range as

appropriate for the enhancementfactors, and then reduce the sentence within the range as appropriate for t he m itigating factors. Id . §40-35- 210(e). The weig ht afforded an enhanc ement or mitig ating factor i s left to the discretion of the trial court so long as the trial cour t complies w ith the purposes and principles

of the Tennessee Cri minal SentencingReform Act of 1989 and i ts findin gs are supported by the recor d. State v. Ha

yes , 899 S.W.2d 175, 185 (Tenn. Crim. App.), perm. app. denied (Tenn. 1995).

In making its sentencing det ermination, the trial cour t, at the “conclusion of the sentencing hearing,” determines the r

ange ofsentence and then determinesthe specific s entence and th e propriety of sentencing al ternatives by considering(1) the ev idence, if any, rec eived at thetrial and the sen tencin g hearing;2 As pointed out abov e, the pre-sent ence report, w hich contains information about the defendant’s prev ious crimi nal convic tions, is found i n the technical record as prepar ed and certified by

the trial court clerk . The copy included in th e record bear s a facsimile of the clerk’s fil ing stamp (i ndicating t hat the origi nal was fil ed with the clerk on Septe mber 9, 1994), but the document bears no notation that it was received by the cour t as an exhi bit to the sentenc ing hearing. I n the transcr ipt of the sentenci ng hearing , the trial court referred to the pre-sentence r

eport and stated, “It wil l be considered then as amended and corrected.”

However, it was not exhib ited to the senten cing heari ng. There was no objection to the procedure nor to the ultimate use of the report. Within the context of the pr

oceeding in this case, thetrial cour t received the report, i f not by stipulation, then by taci t acceptance by both sides, w ithout objecti on. Furthermore, we note that, whether the report’s admi ssibilit y is sti pulated or not, the court’s consideration of the report -- and hence the court’s receipt of the report -- is mandated by Tennessee Code Annotated section 40-35- 210(b) (2) (1990). Thus, th e defendant does not and cou ld not complain of the use of the report. The issue that tr ial courts should take care to address, however, is the organization of the sentencing record f or appellate review. An appellate court must be able to i dentify in the record the same document upon whi ch the trial court reli ed. Even thoug h a report in this case may have been a de facto exhibit, amounting to ev idence submitted on behalf of the state, no r eport was specifically

identified and authen ticated in the record by the trial court. For situations of thi s type, the following well- reasoned rule was developed:
14 (2) the presentence report; (3) the principl es of sentencing and arguments a s to sentencing alternat ive; (4) the nature and characteristics of the criminal conduct involved; (5) evi dence and information offered by the parties on theenhancement and mitigatingfactor s ; (6) any statements the defendant w ishes to make i n the defendant ’s behalf about sen tenci ng; and (7) the pot ential for rehabi litation or treatm e nt. Te nn. Code Ann. §40- 35-210(a), ( b) (Supp. 1996) ; Tenn. Code Ann. §40-35-103(5) (1990); State v. Ho lland , 8 6 0 S

. W. 2d 53, 60 (Tenn. Cr im. App. 1993). In the case now be fore us, the tri al judge pl aced of re cord exten sive findin gs of fact and demonstrated t hat he understood, reviewed, and considered the applicable sentencing principles . The sentencing det er minations, theref ore, are accompanied by the presum ption of correctness.

Applying the principl es of sentencing with the presumption of correctness, the length of each sente nce is fullysupported in t he record. The trial court’s reliance upon the previou s history of criminal convictions

or crimina l behav i or is warrant ed. 2 See Tenn. Code Ann. § 40-35-114(1) (Supp. 1996). T he trial courtBefore an exhibi t may be consi dered by thi s court, it must have been ( a) received into evidence, (b) marked by the trial judge, clerk or court reporter as having bee n received into evidence as an exhibit , (c) authe nticate d by the tria l judge , and (d) inc luded in the tr anscript of the evidence tr

ansmitted to this

court. State v. Co oper , 736 S.W .2d 125, 131 (Tenn . Crim. App. 1987) (emphasis added). See Tenn. R. App. P. 13( c). See also State v. Richard Douglas Lowery , No. 03C01-9604- CC-00146, sl ip op. at 9-10 (Tenn. Crim. App., Knoxvil le, May 19, 1997) (rul e applied to a “ criminal hi story report” in the context of sentenc ing hearing). Under this rule a pre- sentence report filed only with the c lerk and found only in th e technical r ecord is not in evidenc e. As pointed out above, the report in the case now beforeus may have been substantial ly “re ceived int o evidence as an exhibit, ” but “authenti cated by the t rial judg e” as a matter of record it was not. (The technical record, where the ostensible rep ort appears in this case, i s certified by the court cl erk, not authenti cated by the t rial judg e. Compare Tenn. R. App. P. 24(a) (1) with Tenn. R. App. P. 24(f)). Sentencing courts should take care to a ssure that the pre-sentence r eport is authent icated by the judg e as evidence received in the sentenci ng hearing

. While this issue is worthy of ampli fication for the sak e of sentencing by courts in thefuture, we ar e not concerned abo ut the effect of the lack of authentication or

identification of the exhibit in this case . First, the issue was not raised in the trial court nor on appeal, an d accordingly, it is waived. Tenn. R. App. P. 13(b), 24(b), 36(a) ; Tenn. R. Ct. C rim. App. 10(b) . Secondly , the prior convicti ons that wer

e utiliz ed by the tr ial court i n sentencing the defendant, being two conv ictions inv

olving the carry ing of weapons , and a convi ction for eva ding arrest were acknow ledged by the defendant when he testified at the s entencing hearing. Under these facts any error in not auth enticating the report as evidence is harmless. Tenn. R. App. P. 36 (b); Tenn. R. Crim. App. 52(a).

3 We note, for example, that in State v Dondi B. Dolan , No. 03C01-910 1- CR-283 (Tenn. C rim. App., Knox ville, March 25, 1992) , this court was w illing to accept the tri al court’s application of mit igating factor (1) w here the defendant sold 1.5 gr

ams of cocaine. However , in Dolan we affirmed the trial court’s determination that th e enhancement factors outweighed this mitigating factor, 15 was justifiably

concerned about the dangerous combination of drug trafficking an d going arme d. Cle arly, the trial judge determi ned that the recor d of prior conv ictions forweapo ns of fen ses e xacer bate d the drug o ff ense in th e cas e und er revi ew, causing the trial court to give controllin g weig ht to this enhancement factor. See Hayes , 899 S.W .2d at 185. W e concur.

The defendan t argue s on a ppe al th at th e tria l cou rt sho uld h ave con sidered and applied the statut ory mitigating factor that the criminal conduct neither caused nor threatened s erious bodil y injur y. See Tenn. Code Ann. § 40-35- 113(1) (1990). However, had there been any error committed in failing to use this mitigatingfactor, it would be harmless based upon the weight justifiablyaccorded to the applicable enhan cement factor. 3 Tenn. R. App. P. 36(b); Tenn. R. Crim. P.and likewise in the case now before us, the enh ancement fa ctor so clearly

outweighs any possible benefit to the de fendant of applying mitigating factor (1), that we do not

feel constrained to determine the applicabili ty of this mi tigating factor to the def endant’s possession of 6.2 grams of cocaine. This con clusion is further facilitated by the fact that neither party developed th e mitigation issue in the briefs filed on ap peal.

4 Tennessee Code An notated section 40-35 -302(d) provides that, in imposing a mi sdemeanor sentence, “the court shall fix a percen tage of the sentence whi ch the defendant shall serve.” Tenn. Code Ann. § 40- 35-302(d) (Supp. 1996) ( emphasis added). (After serv ing the req uired percenta ge, the prisoner is eligible for work release, furlough, or other rehabilitative programs.) The maximum percent age that may be established is 75% (except in certain cases not appli cable here). “If no percentag e is expressed in the j udgment, the percentage shall be considered zero percent (0%).” In the case now before us, the sentencing order speci fies no percentag e. With respect to the misdemeanor sentence, the “admin istrative authority” has the discretionary authority to “place the defenda nt in [rehabilitative] programs as provided by law.” Id . However, the imposition of conc urrent sentenc es renders thezero percentage serv ice of the misdemeanor sente nce meaningless. 16 52(a).

Fina lly, we exami ne the refusal of the tr ial court t o allow al ter na tive sentencing in this cas e. 4 Under theTennessee SentencingReform Act of 1989, a defendant who is “an especially mitigated or standard offen der convicted of a Class C, D, or E felony ,” and who has n ot been convi cted of “committingthe most severe offenses, possessing [a] criminal histor[y ] evinci ng a clear disregar d forthe laws and morals of society, and evinci ng failure of past efforts of rehabilit ation,” is presumed to be a favorable candidate for alter native sente ncing option s, “in theabsen ce of evidence to the contrar y.” Tenn. C ode Ann. § 40-35-10 2(5), (6) (Supp. 1996). A defendant is elig ible for probation, a par

ticular alternative sentencing option, when the sentence “actu ally impos ed . . . is ei ght (8) years or les s . . . .” Tenn. Code Ann. § 40-35-303(a) (Supp. 1996) (u nless the defendant i s convic ted of aggrav

ated forms of kidnapping, robbery, child abuse, o r sexual batteryor certain drug offenses not applicable in the case sub judice ).

The defendan t was conv icted of a Class B felony and received a sentence of ten years. He is neither eli gible for pr obation nor is

he presumed to be
a favorable candidate for alt ernative s entencing. The r ecord reflects

the trial court
was guided by th e princip les of s enten cing and c onside red alte rnative se ntenci ng,17

and that is all that we can require. There is no basis in the recor

d for upending the trial court’s j udgment that alte rnative s entencing options w ere notappropriate. In other words, t he defendant has failed to carry his burden of demonstrati ng that the
manner of serviceof the sentence is improper. There is no groun d for alteringor sett ing as ide t he se nten ce as orde red b elow.

VI. Conclusion.

The conclusion i s that there i s no consequent ial error in the proceedings

below, and the judgment of the t rial court is in all respects affirmed.

_______________________ CURW OOD W ITT, Judge CONCUR:

__________________________ JOE B. JON ES, Pres iding Jud ge

__________________________ GARY R. W ADE, Jud ge