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

Briefs N ovember 28 , 2001

STATE OF TENN ESSEE v. CHIANTI F ULLER

Appeal from the Circuit Court for Bedford County No. 14726 William Charles Lee, Judge

No. M2001-00463-CCA-R3-CD - Filed Dece mber 28, 2001

The Defend ant, ChiantiFuller was indicted for four offenses: (1)possession with intent to sell 0.6 grams of cocaine , a sched

ule I I co ntrolled s ubstance , (2) poss ession wit h intent to d

eliver 0 .6 gra

ms of cocaine , a sched

ule I I co ntrolled s ubstance , (3) simpl e possess i on of mar ijuana, a schedule VI controlled su bs ta nc e, an d ( 4) po ss es si on of dr ug pa ra ph er na li a. Th e D ef en da nt wa s c on vi ct ed by a jury of counts (1) and (2), and pled guilty to counts (3) and (4). The trial court merged count two into count one and sentenced the Defenda ntto nine years a

nd six months for possession of cocaine withintent to sell. The Defendant was also s entenced to nine mo nths to be s erved c oncurre ntly with his other sentence for

each of the two misdemeanor convictions. On appeal, the D efendant contends that (1) the e vidence present ed at tria l was insuf

ficient t o support the jury

verdict of guilt beyond a

reasona ble doubt a

nd (2) the sentenc e was exc essive. We affirm t he judg ment of the

trial cou rt.

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

D AVID H. W ELLES , J., delivered the opinion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined.

Andrew Jackson Dearing, III, Shelbyville, Tenne ssee, for the appellant, Chianti Fuller.

Paul G. Summers, Attorney General and Reporter; Kathy Aslinger, Assistant Attor n ey Gene ral; Mike McCown, Assistant District Attorney Ge ne ral; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On March 4, 2000, Dir

ector Tim Lane and Ass istant Director Shan Daugherty

of the Seventee nth Judicial District Drug Task Force stopped a c ar in Shelbyville, Tennessee based upon information obtained by Director Lane f rom a confidential informant. The informant told the Director that the two men in the car would be in po ssession of a large amount of crack c ocaine. After stopping the vehicle, Director Lane approac

hed it on the driver’s side and Assistant Director Daughe rty approached the vehi cle on the passenger’s side. As the office rs approached, Assistant-2-

Director Daughe rty observe d the Def

endant, w ho was sitt

ing in the front pa ssenge

r seat, a ttempt to hide an object under the seat. The officer instructed the Defendant to roll his window down, and then noticed a beer can protruding f rom underneath the Defendant’s seat. The Defenda nt was then instructed to hand the

office r the bee r and ste p out of the

car. Once out of

th e car, the off

icer conducted

a pat down search of the

Defendant and discovered a har d object in the Defendant’s back pocket. When aske d about the object, t he Defe ndant re moved a c rack pip e from hisback pocket and handedit to the officer. The Defendant wa s immediately placed unde r arrest for possession of drug paraphernalia.

After p laci ng the Defendant under arr est, Assistant Director Daugherty conducted a more thoro ugh search and discovered $111.00 in cash and what appeared to be crack cocaine in the Defendant’s sock. Donna Flowers, a

forensic chemist with the Tennessee Burea u of Investigation, testified that the su

bstance found in th

e Defe ndant’s s ock was 0 .6 gra

ms of c oca in e, a sch edu le II controlled substance.

The driver of the car, Jesse Carter, was also arrested after a brief strug gle which ensued when Director Lane r

ealized Mr. Carter was attempting to chew up and swallow a bag of what was later identified as 1.3 grams of crack cocaine. After Mr. Carter’s ar rest, the officers searched the c ar and found $223.00 in cash and 9.4 grams of marijuana.

Following the arrests, the Defendant was taken to the Be dford Cou

nty Sheriff ’s Depa rtment, advised of his rights, and interviewed by Director Lane a

nd Officer

T homas Biele. Prior to the interview, the Defendant signed a waiver of rights form; however, the inter view was not recorded by video or audio tape. Director Lane a nd Officer Biele testified at trial as to the statements made by the Defendant in the interview. During the inter view, the Defendant admitted to traveling from Nashville to S helb yville with Mr. Carter on two pre vious occasions to sell crack cocaine. The Defendant

stated that Mr. Carter would give him approximately one gram of crack

cocaine, and he would sell it in smaller amounts. The Defendant estimated that he had sold close to seven grams of crack c ocaine o n behalf

of Mr. Car

ter. The Defend ant also s tated tha t he sometimes so ld crac k cocaine in Shelbyville w ithout th e help of Mr. Carter. Despite making these state ments, the Defendant

refused to make any

statements regarding the 0.6 g rams foundin his possession on March 4. A butt of a marijuana

cigarette was also found in the Defe ndant’s coat pocket while the Defendant was being processed.

Director Lane testified that

the stre et value of the crack cocaine found in the Defendant’s sock would be a

pproximate

ly $ 60.00. Ac cording

to the Dir ector’ s testimony , a crac

k addict t ypi cally purchases approximately 0.2 gra ms, or $20.00 worth, of

crack cocaine at a time. However, Director Lane did concede

that an addict may, a

t times, buy as much as $50 worth of c rack cocaine.

The Defend ant t estified on his own behalf at trial. He stated that on March 4, 2000, he accompanied

Mr. Carter to Shelbyville wher e Mr. Carter intende d to vis it his girlfriend. The Defendant

had accompanied Mr. Carter on severa l such trips in the past, and also hada fr iend in Shelbyville, Cynthia Rankins. Upon arriving in town, the Defendant asked Mr. Carte

r to take him-3-

to Ms. Rankins’ residence. Finding Ms. Rankins to be not at home, the Defendant walked around th e neighb orhood a

nd eventu ally

bought $ 50.00 wor

th of cra ck coca ine from a

man on the

street. The Defendant smoked part of the crack cocaine while he waited f or Mr. Carter to return, and placed the rest in his sock. Two hours later, Mr. Carter a rrived a nd the two

left, only to be stopp ed shortl

y th er ea ft er by D ir ec to r La ne an d A ss is ta nt Di re ct or Da ug he rt y.

The Defendant contended at trial that the cocaine found in hi s possessi on was sol ely for his personal use. He admitted to bei ng a crack addict, but denied eve r selling crack cocaine. The Defendant

denied ever

making statements to police concerning his involve

ment with M

r. Carte r in selling crack cocaine, and a sserted that he was not aware that Mr. Carter sold crack cocaine.

SUFFICIENCY The Defend ant first

contendsthat the e

vid ence is i n sufficient to support the jury’s f inding of guilt beyond

a reasonable doubt to the charge s of possession with the intent to sell or deliver the drugs. The Defendant concedes that he was in possession of crack cocaine, however, he contends that there is no evidence to establish that he had an intent to sell or deliver.

Tennessee Rule of Ap

pellate P rocedur e 13(e) prescr

ibes that “ [f]indingsof guilt in criminal actions whether by the

trial court or jury sha

ll be set aside if the evidence is insufficient

to support the finding s by

the trier of fact of guilt beyond a re asonable doubt.” Evidence is sufficient if, after reviewing the evide

nce in the light most

favorable to the prosecution, any rationa l trier of fact could have found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. V irginia
, 443 U.S. 307, 3 19 (1979) ; Statev. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). In a ddition, because conviction by a trier of

fact destroy s the presumption of innocence and imposes a p resumption of guilt, a convicted criminal defendant bearsthe burden of showing that the evide nce wasinsuffic ient. See McBee

v. State , 372 S.W.2d 1 73, 176 (T enn. 1963 ); see also Stat e v. Buggs , 995 S.W.2d 102, 105 -06 (Tenn. 1 999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); Stat e v. Tu ggl e , 63 9 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence a s well as a ll reason able and

legitima te in ferenc es that may be dra wn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may

not “reweigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d a t 191; see also Buggs
, 995 S.W.2d at 105. Likewise, should the re viewing court f ind particular conflicts in the trial
te st im on y, the court

must resolve them

in favor of the jury

verdict or trial court judgment. Tuggl e , 639 S.W.2d at 914. All questions involving the credibility of witnesses, the we ight and value to be giventhe evide

nce, an d all fac tual issue s are re solved by the trier of fact , not t

he appella

te court s. See State v. Morris , 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).

The Defendant was convicted pursuant to Tennessee Code Annotated section 39-17-417(a) which prohibits a person to “[p]ossess a controlled substance with intent to manufacture, deliver or sell such controlled substance.” Tenn. Code Ann. § 39-17-417(a)(4). The Defendant concedes that1 The De fend ant co nten ds as p art of th e suff icienc y arg um ent in his brie f that h e w as im pro perly convic ted of

both poss ession of co caine with inten t to sell an d po ssession of co caine with inten t to del ive r ba s ed up on t he s ame evidence in violation o f dou ble jeopa rdy p rotections. Ho we ver, it is cl early s tate d on the Judgment for count t wo that the tw o con viction s we re pro perly me rged

. See Stat e v. Thor nton , 10 S. W.3d 229, 233-38. Theref ore, the Def

endant

now stand s con victed of on ly on e offe nse: p osses sion o f coc aine w ith inten t to sell.

-4- h e was in possession of 0.6 grams of crack coc aine, but contends that the cocaine was for hi s perso nal us e and t hat he had no inten t to s ell or deliv er the d rug.
Despite the Defendant’s contention, there is sufficient evidence within the record to support the jury’s finding that the Defendant did possess the intent to sell or deliver the crack c ocaine. The Defendant

was found in possession of 0.6 grams, or $60.00 worth of crac k cocaine. Director Lane testified that a crack addict would normally buy only approxima

tely 0.2 grams, or $20.00 worth, of crack, but occasionally may buy as much as 0.5 grams, or $50.00 worth, of crack cocaine. Director Lane al so sta ted that the Defendant told him he had previously sold crack cocaine in Shelby ville, withand without Mr. Carter, on several occasions. The De fendant gave Direc tor L ane a detailed description of the technique the Defendant and Mr. Carte r utilized when selling crack cocaine. The Defendant

informed Director La

ne that he had sold approximately seve n grams, or $ 70 0 worth of crack cocaine in Shelby

ville on behalf of Mr. Carter.

While the De fendan t deni ed mak ing these st atements , it is clea r that the jury resolve d this conflict in favor of the State and

accre dited the

testimony

of Director L ane. Ac cording ly, in the light
most favorable to the State, we find sufficient evidence to support the Defendant’s convictions for possessio n of a con

trolled su bstance with inten

t to delive r and sell. 1

SENTENCING The Defendant also contends that the sentence imposed by the trial court is excessive. The Defendant

wa s c on vi ct ed of

po ss es si on wi th in te nt to de li ve r . 6 g ra ms of co ca in e, a C la ss B f

el on y, and sentenced as a Range I standard offender. See

Tenn. Code Ann. § 3 9-17-417 (c)(1). The sentencing range

for a Cla ss B felony is theref ore eight to twelve y

ears. See Tenn. Code Ann. § 40- 35-112(a)(2). The Defendant was sentenced to nine y ears and six months. Although on appeal the Defendant

does not suggest that the trial court failed to proper ly consider enha

ncement or

mitigating factors, he asserts that only a minimum sentence of eight y ears would be appropriate in this case.

When an accused

challenges the length, rang e, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the deter minations made by the trial court a re correct. Tenn. Code Ann. § 40-35-40 1(d). This pre sumption is “conditionedupon 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).

When conducting a de novo review o f a sente nce, thisCourtmust consider: (a) the evidence, if any, received at the trial and sente ncing h earing; (b) the presentence report; (c) the principles of-5-

sentencing and arg

uments as to se ntenc ing alternatives; (d) the nature and cha racteristics of the criminal conduct involved; ( e) any statutory mitigatin g or enhan cement factors; (f) any statement made by t he defendant regarding sentencing; and (g) the potential or la ck of potential for rehabilitation o r treatment. See Tenn. Cod e Ann. §§ 4 0-35-102 , -103, -2 10; State v. Brewer , 875 S.W.2d 298, 302 ( Tenn. Crim. App. 199 3); State v. Thomas , 755 S .W. 2d 838, 844 (Tenn. Cr

im. App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper we ight to the factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are adequa tely supported by the record, then we may not modi fy the s entence even if we would have preferred a diffe rent re sult. State v. Pike , 978 S.W.2d 9 04, 926-2 7 (Tenn. 1998); State v. Fletcher
, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

In sentenc ing the D efenda nt, the trial court

examined the presentence report and stated the follo wing: The Cour t finds that the defendant has a previous history of criminal convi ctions or criminal behavior in addition to those necessary to establish the appropriate range. And as the State has argued, there a re two different

avenues that the Court can consider. The Courtis concerned that the defendant apparently

has rooked the State of Tenness e e on m ore than

one occ asion in securing the privil ege to d

rive. He gets a license that is revoked, goes back and gets anothe r one under a different name. And then he gets that one revoked, and he goes back and

gets a license under a differ ent

name. Well, each of

those revocation s are cr imin al beha vior that the Court can consider. But the Court can also consider and does give g re ater weight

to those convictions th an the Court would normally give to a misdemeanor conviction because of the circumstance s surrounding how apparently those convictions occurred

. . . . The Court also

finds that the defendant’s statement which was introduced at trial could – to be the more likely case; and, tha t is, that the defe

ndant, in a

n effor t to

su pport his habit, did engage in the sale of drug s, and on more than one occ asion

. And in each of those occasions, then the Court finds there to be cr iminal behavior.

The evidence presented at trial, as well as the infor

mation pro vided by

the pres entence

report, clearly
esta blished the Defendant’s history of criminal activity. The tr ial court did not err in finding the history of criminal activity qualified a s an enh ancement factor. See Tenn. Code Ann. § 40-35- 113(1).

The Defend ant sugg ested thr ee mitig ating f actors, and all we re reje cted by

the trial court. First, the Defe

ndant ass erted th at beca

use he pla ye d a minor r

ole in the commission of the offense,-6-

his sentence should have been mitigated. See Tenn. Code Ann. § 40-35-11 3(4). The trial court specific ally

found that the Defendant was more that a minor role play er in the offense charged. The trial c ourt rejected the Defendant’s contention that Mr. Car ter was the major drug dealer in th e present ca se and th e Defendant was simply an underling. We note that the Defendant was not charged with any

offense s relatin g to Mr. Car ter, but only with possession of the drug s and paraphe rnalia that were found on his person. We find no err or on the part of th

e trial c ourt in rejecting the application of this factor.

Next, the Defendant argued t ha t the trial court should have considered his employ ment history and his drug addiction as mitigating factors under Tenne ssee Code Annotated section 40-35- 113(13). In re

je c ting the Defendant’s arg ument, the trial court noted that the Defendant’s employment

history was unverifia

ble because he

was often self-employed. The trial court’s refusal
to rely upon an unverifi ed employment rec ord and a drug addiction to mitigate the Def endant’s sentence was not improper.

Fi na ll y, the Defendant contended that his sentence should be mitiga ted because his conduct neither caused nor threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113(1). The trial
court rejected the Defendant’s contention bas ed upon our decision in State v. Millbrooks , 819 S.W.2d 441 (Tenn.Crim.App 1991), where we held that “consider ing the potency

of crack cocaine, it certainly c an be said that there is a high risk to human life from the distribution of that substance.” Id. at 446-447. See also Tenn. Code Ann. § 40-35-1 14(16). T he trial c ourt rea soned tha t if the sa le of crack cocaine can be used as an enha ncement factor due

to the high risk to human life, a defendant who is convicted of possession of crack cocaine with the intent to sell that substance cannot use the fact that a sale never occurr ed as a mitigating factor.

In a rece nt case i n which a defendant was convicted of possession of coca ine with in

tent to sell or deliver, our supreme court held that “where , (1) the convicti on for pos session is b ased only upon constructive possession, and (2) thethreat of serious bodily injury is more co nceptua

l than re al, littlejustification exists in having a per se rulethat excludes consideration of this mitigating factor.” Statev. Ross , 49 S.W.3d 833, 848-49 (Tenn. 2001). The supreme co u rt based its ruling on the

co nceptual natur e of th e threa t of se rious bodi ly injur y and the l ack of e viden ce sho wing t h e defendant sold or at tempted to

sell the dr

ug at the time of the offense. Id. The supr eme cour t also stated that “a per se exclusion of a particular mitigating factor to a n entire class of offenses not alwa ys or not inherently involving se rious bodily injury

undermines the notion of individualized sentencing that underlies the 1989 Criminal Sentencing Reform Act.” Id. at 849. Therefore, we find that, becaus e no ev idenc e was pr esent ed tha t the D efenda nt act ually sol d or was selli ng t he cra ck cocaine at the time of the offense, the trial court erre d in refusing “per se” to consider Te nnessee Code Annotated section 40-35-113(1) as a mitigating f actor.

However, while the supreme court rejected a per se exclusion of 40-35-113(1) as a mitigating factor in felony cocaine possessio n cases, the court did not require the factor be acc ordedany specia l significance. See Ross , 49 S.W.3d at 849. Like Ross , given the fac ts of

this case, we conclude that the mitigating factor

is entitled to very little weight in the sentencing determination. After reviewing-7-

the record, wefind that the trial court gave appropriate w eight to the enhancement factor, a nd we are unable to conclude that the sentence imposed is improper or unsupported by the record. See State

v. Ruane , 912 S.W.2d 766, 785 (Tenn.Crim.App. 1995). Accordingly , we find that while the trial

co urt should have considered 40-35-113(1) as a mitiga ting factor in deciding the Def endant’ s sentence, the sentence imposed was, never theless, proper.

CONCLUSION Acco rd in gl y, we find

sufficient evidence to support the Defendant’s c onviction and sentence. The judgment of the trial court is AFFI RMED.

___________________________________

DAVID H. WELLES, JUDGE