### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs M

arch 20, 2001 STATE OF TENNESSEE v. JEREMY TA YLOR Appeal from the Circuit Court for Blount County No. C-10033 D. Kelly Thomas, Jr., Judge

No. E2000-01724-CCA-R3-CD April 10, 2001
The defendant was indi cted by a B lo unt County Grand Jury for casual exchange of a controlled substance, marijuana, and found guilty following a bench trial. Following a sentencing hearing, the trial court sentenced the defendant to eleven months and twenty-nine day s in jail. As to the manner of service of the sentence, the first ninety days were orde redserved in confinement with the option of serving the last thirty days in an inpatient drug abuse program. The balance of the sentence was ordered served on probation. In this appeal as of right, the defendant presents two issues for our review : (1 ) whether the evidence was sufficient to support his conviction; and (2) whether the manner of service of his sentence was appropriate. We affirm both the conviction and sentence. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OE G. R ILEY , JJ., joined. Raymond Mack Garner, District Public Defender, andShawn G. Graham, Assistant District Pu

blic Defender, for the appellant, Jeremy Tay lor. Paul G. Summers, Attorne y General and Reporter; Pet

er M. Coughlan, A

ssistant Attorney

General; Michael L. Glynn, District Attorney General; and Joh n A. Bobo, Jr., Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defendant, Jeremy Taylor, w as indicted by a Blount County Grand Jury for the casual exchange of a Schedul e VI controlle d substanc e, marijuan a, a Class A m isdemeanor . Followin g a benchtrial, the defendant was found guilty as indicted and sen ten ced t o el even mon ths and twe nty-1 We assume that a document signed by the trial court on April 27, 2000, and included in the record with the heading, “O rder Acc epting Plea of Guilty,” for ind ictment num ber C-10 033, casu al exchange , is incorrect.

2 The State in its brief ackno wledges that a verbatim tran script of the be nch trial doe s not exist but, ap parently, agrees to tre

at the defendant

’s supplementa

l statement

of the evidence

as accurate. -2- nine days in jail. 1 The trial court ordered the defendant to serve ninety

days in conf

inement, with the option of serving the fin al t hir ty da ys in a substance abuse facility. The balance of the sentence was ordered served on probation. A fine of $250 was assessed. In this appeal as of right, the defendant presents two issues for our review : I. Whether

the evidence wa

s sufficient to supp

ort his c onvicti on for casual exchange of marijuana; and
II. Whether the trial c

ourt properly

sentenced him. Finding no erro

r, we affirm the

judgment of the tr

ial court. FACTS The defendant

in this case

is a young man in his early twenties, within a fe w credit hours of graduating from the University of Tennessee with a Bachelor of Science Degree in chemistry, and witha steady job where he was, at the time of this offense, rising in the ra nks of employment. The defendant has smoked an average of five joints of marijuana a day since the age of sixteen. The record on appeal, although lacking a transcript of the bench trial at which the defendant was found guilty of casual exchange of marijuana, includes the defendant’s supplemental stat ement of the evidence. 2 According to this supplemental statement and the record as a whole,on July 17, 1996, t he defendant was living in a residence in Maryville with two roommates. On that day , Off icer s Scott Johnson and Eric Gutridge, both working with the Blount Metro Narcotics Unit (BMNU), set up a drug purchase using a conf idential info rmant who lived in the same neighborhood as the defendant and had smoked marijuana with him on at least one occasion. The informant was given $150 to purchase one o

unce of marijuan

a from the defen

dant and was outfi

tted with a radio transmitter so that Officers Johnson and Gutridge could listen to and record the transaction.
In the afternoon of July 17, on the first pass by

the residence, the officers determined that the defendant was not at

home, but as they were driving away , a vehicle that matched the description of the defendant’s drove

up. The informant was then let out to go complete the purchase. He testified that he went in the house and that the defendant only had half an ounce of ma rijuana for sale. He purchased

this amount for $70 andthen proceeded to the prearranged meeting place whe re he turned over the marijuana and cash balance to the BMNU officers. Tests conducted by the Tennessee Bureauof Investigation on the plant substance turned over by the informant showed it to be 12.6 grams of marijuana, or slightly less than half an ounce.-3-

A transcript of the tape-recorded conversation between the informant and the defendant

was admitted as evidence at the bench trial of this cause. The following text sets out that conversation as t rans cri bed and adm itt ed as evi den ce, i n it s en tir ety:

16:40 C.I. [confidential informant] DEPARTS 17:32 C.I. ARRIVES 17:32 C.I.: JEREMY, YOU ARE A HARD MAN TO GET

HOLD OF. JEREMY: YEAH C.I.: IS THAT ALL

YOU’VE GOT? JEREMY: NO, I’V

E GOT ANOTHER 1/4 C.I.: I’M N

EEDING 1⁄2 OUN

CE OR OUNCE JEREMY: PROBABL

Y A 1⁄2 OUNCE HERE C.I.: WHAT DO YOU NEED OUT OF IT? JEREMY: 70 DISCUSSION

ABOUT TAYLOR MOVING TO PEA RI DGE AREA 17:33 C.I.: IS THAT PRETTY GOOD HERB?

JEREMY: YEAH MORE TALK OF MOVING

C.I.: THAT’S A C OOL BONG, PUFF THAT MAGIC DRAGON C.I.: WHEN YOU GOING TO HAVE MORE?
JEREMY: I DON’T KNOW, WHENEVER I CAN GET THE FUCKING CHANCE TO GO GET IT.-4- C.I.: THINK YOU’LL HA VE AN YMORE TOMORROW? JEREMY: I DOUBT IT. 17:34 C.I. : THAT’LL BE 70, SEE HERE, 20, 40, 60, 80.

YOU GOT 10? JEREMY: LET ME COUNT THAT C.I.: IS THAT IT? JEREMY: YEAH C.I.: HOW MUCH FOR A WHOLE OUNCE? JEREMY: $130
C.I.: THINK YOU CAN DO ONE T OMORROW EVENING? JEREMY: I GOT TO WO RK TOMOR ROW T ALK ABOUT SCHOOL

AND WORK C.I.: I APPRECIATE IT. 17:36 C.I. DEPARTS The defendant testif

ie d in his ow n defense and de nied that he had e

ver sold marijuan

a to anyone and, further, tes tified th at he had never s een the informan

t until the day

of his trial in this cause, June 27, 2000. ANALYSIS Issue I. Sufficiency of the Evidence The defendant first co nten ds that the evidence is insufficient to support his conviction for casual exchange of marijuana. The defendant seeks to discredit the State’s evidence by pointing out that no fingerprints

were ever take

n from th e plas tic bag containing the marijuana sold to the informant; neither

of the officers listening to the transaction on July 17 from their remote location recognized

the voice of the seller as that of the defendant; one of the defendant’s roommates could have been driving his

car that day ; and his roommate s also u sed marijuana, imp lying, with

out so alleging, that one of them co uld have sold the ma

rijuana to the informant. Essentially, the defendant-5-

asserts that the informant lied about purchasing marijuana from him on July 17, and that he is not the person addressed as “Jeremy” by the informant in the conversation set out abov e. The State counters that the convicting evidence is sufficient. We agree. When a defendant

challenges the convicting evidence on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences that might be drawn from the evidence. See State v . Cabbag e , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight give n their testimony

, and the reconc

iliation of conflic

ts inthe proo f are matters entrusted exclusively to the trier of fact. See Byrge v . State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978) (citing Withers v. State , 523 S.W.2d 364 (Tenn. Crim. App. 1975)). In a bench trial, the verdict of the trial judge is entitled to the same weight on appeal as that of a jury

verdict. See State v. Horton , 880 S.W.2d 732, 734 (Tenn. Crim. App. 1994). In a criminal actio n, a conviction may be set a

side only whe

n the reviewing

court finds t hat the “evidence is insufficient to support the finding

s by the trie

r of fact of gui

lt beyond a r

easonable doubt. ” Tenn. R. App. P. 13(e); see also Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (concluding that courts

reviewing sufficiency of evidence must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”). F ina lly , the burden is on the defendant to show that the evidence is insufficient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Tennessee Code A

nnotated Section 3 9-17-418 provide s the following, in

pertinent part: Simple possession or casual exchange. — (a) It is an offense for a person to knowingly possess or casually exchang e a controlled substance unless the substa n ce was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice. (b) It is an offense for a person to d istribute a small amount of marijuana not in excess of one half (1⁄2) ounce (14.175 grams). Id. § 39-17-418(a)-(b) (1997). Theexchange of a controlled substance, including a transaction where money is exchanged for the controlled substance, is “casual” whe

n it is without design. See State v. Helton , 507 S.W.2d 117, 120 (Tenn. 1974). Here, there is no question concerning either the controlled nature or the amount of the plant substance sold

to the confidentia

l informant on July

17, 199 6. T he o nly q ues tio n is one of i den tit y. The defendant offered no alibi evidence or any credible challenge to the evidence r ecorded on tape. The trial court had the benefit of “see[ing] the witnesses face to face, hear[in

g] their testimony and observ[in g] their demeanor on the stand.” Bolin v. State , 405 S.W.2d 768, 771 (Tenn. 1966). The trial court be lieved the tes timony of the informant, of Officers Johnson and Gutridge, and disbelieved the defendant’s protestations of innocence. Fur thermore, the recorded transaction between the-6-

informant and the defendant

was never cr

edibly refuted a nd remain

s substant ial proof of guilt. We conclude that

there was sufficient

evidence from which a rational trier of fact could have found the defendant guil

ty of selling

12.6 grams of ma

rijuana to the info

rmant. This issue is w

ithout merit. Issue II. Appropriateness of Sentence The defendant conte

nds, in his final issue, that the trial court erred by ordering that he serve part of his sentence in confinement rather than his entire sentence on probation. When an accused challenges the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review on the record with a pre sumption that “t he determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this court must consider (a) any evidence received a tthe trial and/or sentencing hearing, (b) the presentence report, (c) the prin

ciples of sentencing, (d) the arguments of counsel relative to sentencing alternatives,

(e) the nature

and characteristics of the offense, (f) any mitigating or e

nhancing fact

ors, (g) any statements made by the acc used in his own behalf, and (h) the accused’spotential or lack of potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 4 0-35-103 and -210 ; see also State v. Scott , 735 S.W.2d 825, 829 (Tenn. Crim. App. 1987). The party challenging the sentences imposed by the trial court has the burden of establishing that the sentences are erroneous. See Tenn. Cod e Ann. § 40-35-401, Sentencing Commission Cmts.; see also Ashby , 823 S.W.2d at 169 . In this case, the defendant has the burden of illustrating the sentence imposed by the trial court is erroneous. The Tennessee Criminal Sentenc ing Reform Act of 1989, enacte d to “promote justice,” Tenn. Code Ann. § 40-35-102 (1997), provides that the sentence imposed upon an offender should be the “least severe measure necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. § 40-35-103(4) (1997). When the trial court determines the appropriate combination of sentencing a lternativ es to be imp osed, it mu st conside r the follo wing:

(1) The evidence, if an

y, receive d at the tria

l and th e sentencing hearing; (2) The presentenc

e report; (3) Th e principles of sentencing and arguments as to senten cin g alternatives; (4) The nature and characteristics of the criminal conduct involved;3 The defendant pled gui lty to t hese charges, indict

ment n umbers C-10639 and C-10640, and was sente nced to eleven months and t

wenty-ni ne days on each

count, wit

h the sentenc

es to be served concurrently as to each other and consecutive ly as to the sentence in this cause, indic

tment number

C-10033. All three sentences were ordered following the one sente ncing hearing held on Ju ly 7, 2000

. -7-

(5) Evi dence and information offered by the parties on t h e enhancement

and mitigating factors in §§ 40-35-113 and 40-35- 114; and (6) Any statement the defendant

wishes to make in the defendant’s own behalf a bout sente ncing. Id. § 40-35-210(b)(1)-(6). Ou r le gislature has determined that sentences involving confinement should be based on a

number of specif

ic consideration

s: (A) Confinement

is n ecessary to prot ect society by rest raining a defendant who ha

s a long history

of criminal condu

ct; (B) Confinement

is necessary

to avoid depreciating t

he seriousness of the offense or

confinement is particularly suited to provide an effectivedeterrence to others likely to commit similar offe

nses; or (C) Me as ures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant[.] Id. § 40-35-103(1)(A)-(C). These considerations are set out in the alternative. Additionally, “[t]he potential or lack of potential for the rehabilitation or treatment of the defendant should be considered in determining the

sentence alter

native or length

of a term to be imposed.” Id. § 40-3 5-103 (5). In cases of misdeme

anor sentencing

, the sentencing

court has the auth

ority to place the defendant on probation either after

service of part of the sentence in confinement, whether periodic or conti

nuous, or immediately after sentencing. See Tenn. Code Ann. § 40-35-302(e)(1)-(2).
T he reco rd b efor e th is c our t in clu des a tr ans cri pt o f th e sen ten cin g hea rin g hel d on Jul y 7 , 2000; the presentence investigation report; and evidence admitted at the bench trial, including copies of the official lab report and the transcript of the tape-recorded conversation betwee n the informant andthe defendant. T

he record shows t

hat the defenda

nt, while on bond for the offense of casual exchange of a

controlled substance, was subsequently arrested and indicted for possession of drug paraphernalia

and possession of

marijuana on May 9, 1997. 3 Then, while on bond for these two May offenses,the defendant was arrested in Sevier County on Octob er 27, 1997, for possession of marijuana andDUI. While on probation for the Sevier County offenses, the defe ndant failed a drug screening test and was referred to the Helen Ross McNabb Center

for drug rehabilitation, a program he completed in 199 8. The defendan t was also given a drug screening test on May 4, 2000, w hen-8-

he reported to Officer Mike Lane in conjunction with the preparation of his presentence investigation report prior to his

scheduled sente

ncing hearing

on July 7, 2000. That May

4 test was positive for the presence of marijuana. The defendant testified in his own behalf at the sentenc ing hearing and stated that he had “kept my nose clean” for the last three years, or since 1997. On cross-examination, the defendant sought to clarify what he

meant by “keeping his nose clean.” His second choice of phrases was that he had not “been in any trouble since ‘97.” Apparen tly w hat he meant was that he had not been arrested. The defendant a dmitted to continuing

to use marijuana u

p until some “two to th

ree weeks” prior to the sentencing hearing on July 7,2000. The defe nda nt s tat ed t hat he w as “p erha ps m ent all y” addictedto marijuana. The defendant failed to t ake an y responsibility for the marijuana or drug paraphernalia

that was found in his residence on May 9, 1997, but rather implied that h e just happ enedto be in his bed at the time police officers came to arrest his roommate for a pro batio n violation andthis unfortunate wrong-time-wrong-place circumstance led to his being ar restedalong withhis roommate. The d efendant also

revealed an

aversion to structured drug abuse rehabilitation programs,

stating that he wo

uldrather “[s]tay clean myself befor e having to ask for

help from a drug treatment.” The defendan t’s plan fo r staying c lea n al l by himself is to move fr om Maryville

to Gatlinbur g, whe re he can “ get a way f rom some of the -- several friends I’m in (sic) [with] right now.” The defendant testified tha t he was not presently

taking part in an

y sort of dru

g abuse program. In finding this defendant unsuitable for probation alone but suitable for a period of “shock” incarceration

followed by

probation, the tri

al court stated the

foll owing at the conclusion of the sentencing h earing:
In 10033, you a re ordered to

se rve 90 days

of that sentence

in jail. You will be eligible, after 60 days, to serve the balance of it in an inpatient treatme

nt facility, if you want to . You will

be eligible

for work release during the 90-day period and serve the balance of it on probation.

. . . . Ok ay. Now, the reason that I am ordering y ou to serve tha t amount of time in jail is very simple. First of all, you have a previous conviction for possession. You were allowed to serve that on a type of release and [you] violated that release. Also, while these charges were pending, you got arrested once for ca sual excha nge andthen arrested again. And while

all that was going

on, you wer

e still smoking up to five joints a day, even after you pled guilty on two cases, until just very

recently. Probably so rece ntly that you

couldn’t pass a drug screen today, if y ou were given one.-9- So, that tells me that the

likelihood of y

our being reha

bil it ated withoutsome rather severe punishment is very minimal. Becau se you’ve had that opportunity before and even facing up to three years in jail, you still continued to use. That tells me

two things: Number one, you’re not very impressed with y our marijuana use and not very impressedwitht he fact that it’s illegal; and you probably think be cause you are br

ight and have at

tended college

and are about to graduate and that you work ha

rd, that nobody

is going to do anything to you. I mean,

otherwise, you’re just being plain stupid. And I don’t think you’re stupid. Maybe

you’re playing a

bit of an ostrich routine andjust don’t think y

ou’ll ever be fou

nd out and nothing i

s ever really going to happen. But mar ijuana use is

a problem for

you. Anybody that conti n ues to use facing

jail time has got a

problem. Becau

se anybody with half a brain would stop doing whatever it was that put themin jeopardy of going to jail at least until they found out

whether they were going to go to jail or not. And then you think, well, I got away with that, I’ll

start back. See,

you weren’ t even able to do tha t. The record shows tha

t the defendant ha

s frequently

and recently

been afforded

less restrictive measures than confinement and, in each case, these measures have proven unsuccessful.

As to the defendant’s potential for rehabilitation or treatment, we agree with the trial court that the defendant is unable to accept responsibility for his actions and appears to simply deny

the seriousness of

his addiction. Based

on the principles of sentencing and the evidence in the record, we conclude that the trial court ordered an appropriate sentence both as to length and manner of ser vice. Our conclusi on is co nsistent with other recent decisions of this court. In State v. Mecord , 815 S .W.2d 218, 218 (Tenn. Crim. App. 1991), the defendant was convicted of the misdemeano r offenses of distribution of less than one-half ounce of marijuana and of simple possession of cocaine. The trial court sentenced

the defendant to

two concurrent terms of eleven months and twenty-nine days to be served in confinement. The defendant contended that he was entitled to probation after serving a short period of

shock incarceration. This court noted that the defendant “admitted smoking marijuana after work to ‘calm down.’” Id. at 220. The defendant in Mecord

hadno prior arrests or convictions but had a history of drug and alcohol abuse. The trial judge found that defendant to be “[u]ntruthful and evidencing no remorse except for having been apprehended.” Id. The conclusion of the trial judge that probation was not in the “best interests of the public, the defendant, or justice” was affirmed. Id.
In State v. Gerald Scott Long , No. 03C01-9707-CR-00260, 1998 WL 474083, at *1 (Tenn. Crim. App. July 29, 1998), the defendant appealed the manner of service of his concurrent sentences for casual exchange and re

ckless endange

rment. The trial c

ourt ordered both

sentences served in the county jail. The defend

ant had a history

of petty off

enses. The trial court took particular note of the fact that the defendant “[had] been given past chances to rehabilitate himself through probation, drug treatment,shock incarceration, and the like, yet he [had] continued to disregard the law.” Id. The-10-

trial court foundthat these factors outweighed the defendant’s “good work history.” Id. at *2. This court affirmed the manner of service of the sentences. Id. The defendant here

received a sen

tence “justly

deserved in rela

tion to the seriousn

ess of the offense,” and evidencing no “unjustified disparity in sentencing.” Tenn. Code Ann. § 40-35-102(1)- (2). This issue is without merit. CONCLUSION Having reviewed the entire record on appeal, we conclude that the evidence was sufficient to convict the defendant of casual exchange of a controlled substance.We further conclude that the defendant has failed to car

ry his burde

n of showing th

at the ma nner of service of the sentence imposed by the trial court was inappropriate. The judgment of the trial court, both as to conviction and sentence, is affirmed.

___________________________________ ALAN E. GLENN, JUDGE