State of Tennessee v. Ricky Dean Harvey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
June 22, 2011 Session

STATE OF TENNESSEE v. RICKY DEAN HARVEY

Direct Appeal from the Circuit Court for Van Buren County
No. 2022-F Larry B. Stanley, Judge

No. M2010-01533-CCA-R3-CD - Filed June 22, 2012

A Van Buren County jury convicted Defendant, Ricky Dean Harvey, of possession of 0.5
grams or more of cocaine with intent to deliver and possession of drug paraphernalia. The
jury was unable to reach a unanimous verdict on a related charge of driving under the
influence of an intoxicant (DUI), and the trial court declared a mistrial as to that count. A
fourth count of the indictment was resolved in a bench trial wherein the trial court found
Defendant violated the implied consent law. The DUI charge was ultimately dismissed. The
trial court sentenced Defendant to serve eleven years for the cocaine conviction, concurrent
with the sentence of eleven months and twenty-nine days for the drug paraphernalia
conviction. In his appeal, Defendant presents the following issues for review: (1) the
evidence was insufficient to sustain his conviction for possession of 0.5 grams or more of
cocaine with intent to deliver; (2) the stop and search of Defendant’s vehicle and the
resulting arrest of Defendant violated Defendant’s constitutional rights and the trial court
erred by denying Defendant’s motion to suppress; (3) the sentence imposed by the trial court
is excessive; and (4) Defendant “[l]acked the [m]ental [c]apacity for the [a]rrest and [t]rial
[h]eld in this [m]atter.” After a thorough review, we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
PJ., and C AMILLE R. M CM ULLEN, J., joined.

Jennifer Austin Mitchell, Dunlap, Tennessee, for the appellant, Ricky Dean Harvey.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Lisa Zavogiannis, District Attorney General; Darrell Julian, Assistant District
Attorney General; and Mark Tribble, Assistant District Attorney General, for the appellee,
the State of Tennessee.
 OPINION

I. Background

Suppression Hearing

In his original motion to suppress evidence, Defendant asserts that the following items
seized from his vehicle following a stop and subsequent search were obtained in violation
of his rights under the Fourth Amendment to the United States Constitution and Article I
section 7 of the Constitution of Tennessee: cocaine powder, rock cocaine, spoons, needles,
a syringe, a hollow ink pen, and a metal pipe with brillo. The specific and limited grounds
in support of the suppression motion are alleged in the written motion as: (1) it was a
warrantless search in the absence of exigent circumstances; (2) Defendant’s vehicle was
illegally stopped because the officer “had no reasonable suspicion or probable cause that the
Defendant was operating his motor vehicle in violation of any law;” and (3) the officer had
no probable cause to arrest Defendant after the stop and therefore there was no justification
for the “inventory” of Defendant’s vehicle. Defendant asserts in his motion that Defendant
was not arrested for DUI until after a drug sniffing dog alerted to the vehicle and therefore
“the DUI arrest was [a] subterfuge to gain access to Defendant’s vehicle.” There was no
specific allegation of an improper search of the vehicle in the event there were appropriate
grounds to stop the vehicle and subsequently arrest Defendant.

The proof at the suppression hearing consisted of testimony by the officer who
stopped Defendant, and an audio visual tape recording made by the officer’s patrol car
camera. Testimony was limited to the precise grounds raised by Defendant in his written
motion.

Tennessee Highway Patrol Trooper Kevin Ballew was on duty in the late afternoon
driving southbound on Highway 111 in Spencer when he simultaneously received a
dispatched broadcast of a suspected reckless driver operating a van northbound on Highway
111, and saw Defendant’s van which fit that description approach him from the northbound
direction. Trooper Ballew observed Defendant’s van weave across the northbound
emergency lane, come back into the proper northbound lane, and then drift back into the
emergency lane and up the shoulder of the road. Trooper Ballew turned his patrol vehicle
around at the first safe place and turned on his blue lights and recording equipment and began
pursuit of Defendant. Defendant turned right onto Drake Shockley Road, at a wide enough
angle to cross over into the oncoming lane of Drake Shockley Road. Defendant drove a short
distance on Drake Shockley Road and then turned left into a “pull off area.”

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 Defendant got out of his van before Trooper Ballew approached Defendant. Although
Trooper Ballew did not smell an odor of alcohol on Defendant’s person, he did observe the
following of Defendant: “[h]e [ ] seemed to be sweating quite a bit, sweating and very sleepy
acting. His shirt was pulled up out of his pants. His pants was halfway zipped down.”
Defendant claimed that he “was falling asleep,” and he was using crutches. Trooper Ballew
felt he could not ask Defendant to perform any field sobriety tests other than the “horizontal
gaze nystagmus test.” Trooper Ballew never testified as to the results of this test. However,
Trooper Ballew did state that Defendant admitted that he had taken Xanax earlier in the day.

A Spencer Police Department officer and a Van Buren County deputy soon arrived
at the scene. They had heard the same dispatch about a possible reckless driver. The deputy
had a drug sniffing dog with him and took the dog around Defendant’s vehicle. The dog
“hit” on the vehicle. Defendant gave Trooper Ballew two or three different answers as to his
destination at the time he was pulled over and stopped. Trooper Ballew added during his
cross-examination by Defendant’s counsel that Defendant was not actually arrested for DUI
until after the drug sniffing dog had “alerted” on Defendant’s vehicle. The audio visual tape
corroborates the suppression hearing testimony of Trooper Ballew. We also note from the
tape recording that Defendant explained his use of prescribed Xanax was because of his
borderline personality disorder. Defendant also admitted that he had the pain killer Percocet
inside the van, presumably prescribed as a result of the surgery he claimed to have had on his
leg.

Trial

Trooper Ballew’s testimony at trial was mostly a repeat of the facts he had given
during his testimony at the suppression hearing. He did add that when he observed
Defendant driving on Highway 111 Defendant was proceeding approximately twenty miles
per hour below the posted speed limit of forty-five miles per hour and that he was driving this
slow speed while he was weaving. Trooper Ballew also testified that Defendant appeared
to be confused after being stopped and that Defendant passed out in the back of the patrol
car after his arrest for DUI. The drug paraphernalia and the cocaine were found during an
“inventory” of Defendant’s van after he was placed under arrest. The paraphernalia,
including a pipe, syringes, and spoons, were discovered “[i]n the side pocket of the passenger
side door.” The cocaine was found inside a container under the driver’s seat. Trooper Ballew
later sent the cocaine to the Tennessee Bureau of Investigation (TBI) forensic laboratory for
testing.

Deputy Christopher Russell of the Van Buren County Sheriff’s Department arrived
on the scene shortly after Defendant had been stopped by Trooper Ballew. Deputy Russell
was the “canine officer” for his agency and his dog was with him. He had heard the dispatch

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to be on the lookout for Defendant’s van and then heard the dispatch when Defendant was
stopped. Upon arrival, Deputy Russell observed Defendant to be sweating profusely and to
be somewhat incoherent, which he clarified as dazed or sleepy. He walked his dog around
the van twice and the dog “alerted” on the side passenger door each time. During the
inventory of Defendant’s van, Deputy Russell found the drug paraphernalia consisting of
syringes, measuring spoons, and what appeared to be a pipe.

Officer Roger Johnson of the Spencer Police Department arrived at the scene after
Deputy Russell. Officer Johnson spoke briefly with Defendant. He testified that Defendant
mumbled and that he had to ask Defendant “a couple of times” what Defendant had said. To
Officer Johnson, Defendant appeared to be nervous and sweating profusely. Officer Johnson
was of the opinion that Defendant was under the influence of drugs, specifically cocaine or
methamphetamine. Officer Johnson also participated in the “inventory” of Defendant’s van
and discovered a “metal tin” under the driver’s seat. The metal tin contained a white
powdery substance that appeared to be methamphetamine or cocaine.

Tennessee Highway Patrol Sergeant Tony Wilson, an evidence custodian, took
possession of the cocaine from the TBI forensic laboratory and locked it up in the evidence
locker. He later retrieved the sealed and labeled evidence and brought it to court.

Van Buren County Sheriff’s Deputy Chad Martin was called to the scene to field test
the white powdery substance and the “off white” colored solid substance for the presence of
cocaine. Both substances field tested positive for cocaine. He further testified that a person
could get “several” $10.00 rocks of crack cocaine to sell from a total of 3.5 grams of cocaine.

Patty Choatie, a drug chemist for the TBI Crime Lab, testified that she received two
packages of substance, one a white powdery substance, and the other a solid “waxy”
substance. The powdery substance was 1.4 grams of cocaine powder and the solid “waxy”
substance was 3.5 grams of cocaine base, also known as crack cocaine.

Defendant did not testify or present any other evidence.

II. ANALYSIS

Sufficiency of the Evidence

Defendant argues that the evidence was not sufficient to sustain his conviction of
possession of 0.5 or more grams of cocaine with intent to deliver. Specifically, Defendant
bases his argument on his assertions that there was inconsistent testimony and that there was
no proof that Defendant possessed the cocaine with the intent to deliver. As to the last

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assertion, Defendant points to the existence of the drug paraphernalia as proof that he only
possessed the cocaine with intent to use it himself.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

Tennessee Code Annotated section 39-17-417(a)(4) sets forth that it is a criminal
offense for a person to knowingly possess a controlled substance with the intent to deliver
it. It is a Class B felony if the controlled substance contains 0.5 grams or more of cocaine.
Tenn. Code Ann. § 39-17-417(c)(1). “It may be inferred from the amount of a controlled
substance or substances possessed by an offender, along with other relevant 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. Patty Choatie,
the TBI drug chemist, testified that there was 1.4 grams of powder cocaine and 3.5 grams of
“waxy” rock/crack cocaine, for a total weight of 4.9 grams, well over 0.5 grams. She
explained the discrepancy from the arresting officer regarding the weight of the cocaine by

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testifying that officers in the field normally weigh the drug inside its bag, and she weighed
the drug by itself. Any inconsistency in the number of ziplock bags found was resolved by
the jury as the trier of fact. Deputy Chad Martin testified that from 3.5 grams of crack
cocaine, also known as an “eight-ball,” drug dealers could break off several “$10.00 rocks”
of crack cocaine for sale. The evidence was sufficient to support the conviction for
possession of 0.5 grams of cocaine with intent to deliver. Defendant is not entitled to relief
on this issue.

Motion to Suppress Evidence

Defendant argues that the trial court committed reversible error by failing to suppress
evidence of the cocaine and the drug paraphernalia found in his vehicle. The findings of fact
made by the trial court at the hearing on a motion to suppress are binding upon this Court
unless the evidence contained in the record preponderates against them. State v. Ross, 49
S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence and
resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The
prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001).
However, this Court is not bound by the trial court’s conclusions of law. State v. Simpson,
968 S.W.2d 776, 779 (Tenn. 1998). The application of the law to the facts found by the trial
court are questions of law that this court reviews de novo. State v. Daniel, 12 S.W.3d 420,
423 (Tenn. 2000).

Under both the federal and state constitutions, a warrantless search and seizure is
presumed unreasonable, and the evidence discovered as a result thereof is subject to
suppression unless the State demonstrates that the search and seizure was conducted pursuant
to one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33
S.W.3d 215 (Tenn. 2000).

A. Initial Stop

“A police officer may make an investigatory stop of a motor vehicle when the officer
has reasonable suspicion, supported by specific and articulable facts, that a criminal offense
has been or is about to be committed.” State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992)
(citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868 (1968)). “In determining whether a
police officer’s reasonable suspicion is supported by specific and articulable facts, a court
must consider the totality of the circumstances.” Watkins, 827 S.W.2d at 294 (citing U.S. v.
Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)). This inquiry
looks to such factors as the public interest served by the seizure, the nature and scope of the

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intrusion, and the objective facts on which the law enforcement officer relied in light of his
experience. See State v. Pulley, 863 S.W.2d 29, 30-31 (Tenn. 1993). The objective facts on
which an officer relies can include, but are not limited to, his or her own observations,
information obtained from other officers or agencies, offenders’ patterns of operation, and
information from informants. See State v. Lawson, 929 S.W.2d 406, 408 (Tenn. Crim. App.
1996). Reasonable suspicion must be supported by something more than the officer’s
“inchoate and unparticularized suspicion or ‘hunch.’” State v. Day, 263 S.W.3d 891, 902
(Tenn. 2008) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). However, “‘reasonable
suspicion can be established with information that is different in quantity or content than that
required to establish probable cause’” and “can arise from information that is less reliable
than that required to show probable cause.” Id. at 903 (quoting State v. Pulley, 863 S .W.2d
29, 32 (Tenn. 1993)).

In this case, Trooper Ballew simultaneously received a dispatch to be on the lookout
for a reckless driver operating a van northbound on Highway 111, and he saw Defendant’s
van which fit the description. Trooper Ballew observed Defendant’s vehicle, which was
traveling approximately twenty miles per hour below the posted speed limit, weave across
the northbound emergency lane, come back into the proper northbound lane, and then drift
back into the emergency lane and up the shoulder of the road. After Trooper Ballew turned
his patrol car around and began pursuit, Defendant turned right onto Drake Shockley Road,
at a wide enough angle to cross over into the oncoming lane. Based on the totality of the
circumstances, Trooper Ballew had reasonable suspicion supported by specific and
articulable facts to stop Defendant’s van. See State v. Bobby Gene Walker, Jr., No. E2005-
02200-CCA-R3-CD, 2006 WL 2061724 (Tenn. Crim. App. July 26, 2006), no perm. app.
filed, (Reasonable suspicion where a defendant swerved within his lane, crossed dotted center
line with two tires, and crossed a fog line while partially leaving the roadway); State v.
Jerome D. Manning, No. M2001-03128-CCA-R3-CD, 2002 WL 31852860 (Tenn. Crim.
App. Dec. 20, 2002) perm. app. denied, (Tenn. May 5, 2003)(Reasonable suspicion when
defendant’s vehicle crossed the center line twice and then crossed into the right shoulder).
Defendant is not entitled to relief on this issue.

B. Arrest

An officer may make a warrantless arrest “[f]or a public offense committed or a
breach of the peace threatened in the officer’s presence.” T.C.A. § 40-7-103(a)(1). Both the
Tennessee and the federal constitutions require that probable cause exist to effectuate a
warrantless arrest. State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997). Probable cause
depends on whether the facts and circumstances and reliable information known to the
officer at the time of arrest were “‘sufficient to warrant a prudent [person] in believing that

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the [individual] had committed or was committing an offense.’” Bridges, 963 S.W.2d at 491
(quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

In this case, Defendant argues that Trooper Ballew lacked probable cause to arrest him
and that the subsequent search after his arrest was improper. However, the proof shows that
Trooper Ballew had sufficient reliable information to believe that Defendant was driving
under the influence of an intoxicant. As previously stated, Trooper Ballew had received a
dispatch concerning a reckless driver in a vehicle matching the description of Defendant’s
van. He then observed Defendant’s van weave across the northbound emergency lane, come
back into the proper northbound lane, and then drift back into the emergency lane and up the
shoulder of the road. Trooper Ballew also witnessed Defendant turn right onto Drake
Shockley Road, at a wide enough angle to cross over into the oncoming lane. Trooper
Ballew also testified that after he pulled Defendant over, Defendant was “sweating quite a
bit” and was “very sleepy acting.” Defendant’s shirt was pulled out of his pants, and his
pants were “halfway zipped down.” He told Trooper Ballew that he was falling asleep.
Defendant was unable to perform field sobriety tests because he was using crutches. He also
told Trooper Ballew that he had taken a Xanax earlier in the day and that he had Percocet
inside his van. At trial, Trooper Ballew noted that Defendant appeared to be confused after
being stopped. He provided Trooper Ballew with three different destinations when asked
where he was traveling.

We conclude that the record supports a determination that Trooper Ballew had
probable cause to arrest Defendant for driving under the influence of an intoxicant.

C. Search of Defendant’s Vehicle

Defendant argues that the search of his vehicle was improper. More specifically, he
contends that the search was unlawful as a search incident to arrest or as an inventory search.
As pointed out by the State, this precise issue was not raised in Defendant’s motion for new
trial. At the suppression hearing, defense counsel said:

Mr. Harvey was stopped on March 30, 2006 and it’s our contention was [sic]
that the search was without a warrant and that the search of his vehicle was
unlawful for two reasons. One, he was illegally stopped, the officer had no
reason, suspicion, or probable cause. He was not operating his motor vehicle
in violation of any law. And the search was further illegal because once he did
stop him, he had no probable cause to arrest the defendant and on the video
tape it clearly indicates that the stop was - - or the search was done incident
to arrest for DUI but this arrest for the DUI was not done until after the K-9

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 alerted on the vehicle. There is a video tape and I think that would be the best
way is for the Court to view the video tape.

Tenn. R. App. P. 36(a) provides: “Nothing in this rule shall be construed as requiring relief
be granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.” A motion to
suppress evidence must be raised prior to trial. Tenn. R. Crim. P. 12 (b)(2)(C); See also State
v. Goss, 995 S.W.2d 617, 628 (Tenn. Crim. App. 1998). Failure to raise the suppression
issue before trial results in a waiver of such issue. Tenn. R. Crim. P. 12(f)(1).

Defendant did attempt to raise this issue sometime after the suppression hearing in a
“Motion To Clarify Order And Motion To Reconsider Motion To Suppress.” At the hearing
on the motion the trial court stated:

I am not going to go back and rehear that motion. We have already done that.
It might not be a bad idea . . . It looks like the State submitted the order for my
approval and did not state the specific grounds for denying it. I think the
inventory based on the arrest for driving under the influence was a warranted
ground that supported the search. There may have also been the ground that
the officer had probable cause based on the drug dog alert. You may want to
check on that. If you can find out who took that hearing that day, clarify the
order. Just prepare a . . . Find a copy of the tape of the Motion To Suppress
and my ruling on it. It would be about a paragraph. Just type that out for me
so we can make sure that we can clarify that.

Even if this issue had not been waived, Defendant is not entitled to relief. Defendant
raised this issue in his motion for new trial. In denying the motion, the trial court held:

The main issue in the motion for a new trial comes in my opinion with the
motion to suppress, the probable cause to stop and then the subsequent search
of the vehicle. I agree with [Defendant’s counsel] that the defendant was not
in arms reach of any contraband or any weapons at the time of the arrest and
there was not probable cause to search from that but I do think, based on all of
the testimony in the case and I do recall a great deal of it, that the officers had
reason to believe that the defendant was under the influence of some
substance. I agree with you there was no testimony regarding alcohol but there
was probable cause to believe, based upon what the officer saw and then later
heard from the defendant, that he was likely under the influence of some
substance and in association with that arrest, had a right to search the vehicle
because of the pills that the defendant claimed he had taken earlier in the day

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 and from where he had been and where he was going that it was likely that
there would be some type of substance in the car that would impair his ability
to operate the motor vehicle in normal fashion without causing danger to
others.

The issue with regard to the inventory search prior to towing, that is kind of an
odd one. I don’t think that [Defendant] - - let me back up. I don’t know if he
was from here or not. Was he from Van Buren County? Ms. Mitchell, do you
recall?

* * *

I think that is very fact specific as to whether or not he could have called
someone but I think my finding at the time and probably still now would be
that in someone else’s driveway probably would not be proper to leave the
vehicle there if they needed to get in or out. He was not from here. Would
have taken a while to get someone here to do that. So I think that the search
as a inventory was sufficient although it might have been done after the vehicle
was towed. Nonetheless, I think that the search incident to the arrest and there
being probable cause to think that there were controlled substances or
substances that would have impacted [Defendant’s] ability to successfully
navigate his vehicle and those things were likely in the vehicle gave good
reason for them to search the vehicle.

The record supports the trial court’s findings. Defendant in this case was lawfully
arrested because Trooper Ballew had sufficient reliable information to believe that Defendant
was driving under the influence of an intoxicant. Therefore, the drugs and drug
paraphernalia found in Defendant’s van were discovered during a lawful search incident to
his arrest. Although generally a warrantless search is considered presumptively unreasonable
and constitutionally impermissible, police officers may execute a warrantless search incident
to a lawful arrest. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999). Further, an officer
“may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is reasonable
to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S.
332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In this case, Defendant was arrested for
driving under the influence of an intoxicant and admitted to the officer that he had taken
Xanax earlier in the day. Therefore, the officer had grounds to search for evidence of
Defendant’s intoxication. Defendant is not entitled to relief on this issue.

D. Reliability of the Canine

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 Defendant contends that the results of the search should have been suppressed because
the reliability of the canine was not established. Again, as pointed out by the State,
Defendant has waived this issue for failing to raise it in his initial motion to suppress.
Defendant also failed to object to the reliability of the canine at trial. Tenn. R. App. P. 36(a)
provides: “Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.” A motion to suppress evidence must be
raised prior to trial. Tenn. R. Crim. P. 12 (b)(2)(C); See also State v. Goss, 995 S.W.2d 617,
628 (Tenn. Crim. App. 1998). Failure to raise the suppression issue before trial results in a
waiver of such issue. Tenn. R. Crim. P. 12(f)(1).

We note that Defendant attempted to raise this issue in a “Motion to Clarify The Order
And To Reconsider The Motion To Suppress.” At the hearing on the motion, defense
counsel told the trial court that he had subpoenaed Deputy Russell to bring all of the records
on the canine because it had come to his attention that the dog may have had some health
problems. However, Deputy Russell notified counsel that he had to pick up prisoners in
Georgia and did not appear at the hearing. Defendant likewise raised the issue in his motion
for new trial. Concerning this issue, the trial court stated:

The dog reliability is a little bit troublesome if Mr. Tollison raised the issue of
a witness that was to be subpoenaed who had the qualifications of the dog, the
certificates, the training sessions and so forth. So, I’m going to exclude that
as far as my consideration of whether or not there should be a new trial. Let
me take that back. I’m not going to consider the fact that there was testimony
relying [sic] the dog hitting on drugs in the car because we don’t have that
officer’s testimony. If Mr. Tollison had subpoenaed him and he was not here,
although Mr. Tollison I guess if he wanted to he would likely have asked for
continuance if he felt that that officer’s testimony was that important.

Defendant did not present any evidence challenging the reliability of the canine at the
suppression hearing or at the motion for new trial, nor did he object to the reliability of the
canine during trial. Defendant is not entitled to relief on this issue.

Competence to Stand Trial

Defendant contends that he “lacked mental capacity both at the time of the offense in
this matter and at trial.” However, this issue is waived because Defendant did not
sufficiently raise it prior to trial. See Tenn. R.App. P. 36(a); State v. Estes, 655 S.W.2d 179,
182 (Tenn. Crim. App. 1983). Even if not waived, based on the record before us Defendant
would not be entitled to relief.

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 Requiring an accused to plead to an offense or stand trial while insane or mentally
incompetent violates the Fourteenth Amendment to the United States Constitution and article
I, section 8 of the Tennessee Constitution. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct.
836, 837, 15 L.Ed.2d 815 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000).
When there is a question about a defendant’s competency to stand trial, the trial court, on its
own motion or upon the request of the district attorney general or defense counsel, may order
the defendant’s mental evaluation after a hearing. T.C.A. § 33-7-301(a)(1); Berndt v. State,
733 S.W.2d 119, 122 (Tenn. Crim. App. 1987). A defendant is competent to stand trial if he
or she has “the capacity to understand the nature and object of the proceedings against him,
to consult with counsel and to assist in preparing his defense.” Mackey v. State, 537 S.W.2d
704, 707 (Tenn.Crim.App.1975). In determining whether a trial court should have sua sponte
ordered a competency hearing, “an appellate court may only consider those facts which were
before the court when the trial commenced or the pleas were entered.” Berndt, 733 S.W.2d
at 122. The standard of review is “‘whether a reasonable judge, situated as was the trial court
judge whose failure to conduct an evidentiary hearing is being reviewed, should have
experienced doubt with respect to [a defendant’s] competency to stand trial’” or enter a plea
of guilty. Id. (quoting Williams v. Bordenkircher, 696 F.2d 464, 467 (6th Cir. 1983)). The
burden is on the defendant to prove his incompetency by a preponderance of the evidence,
and the trial court’s findings are conclusive on appeal unless the evidence preponderates
otherwise. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

In this case, prior to trial, Defendant filed a motion requesting the trial court to order
a mental evaluation to determine whether he was competent to stand trial. The motion noted
that Defendant “indicated to counsel that he has a total loss of a recent appearance in court.
He had indicated that he cannot recall what happened in court and does not understand what
is going on.” The trial court granted the motion and ordered the staff at Plateau Mental
Health to “assess whether the defendant: understands the nature of the legal process and the
charges pending against him; whether he recognizes the consequences that can follow from
the charges; and whether he is capable of assisting his counsel and participating in his own
defense.”

As pointed out by the State, the results of Defendant’s mental evaluation were not
included in the record on appeal, and it does not appear from the record that Defendant
further challenged his competency to stand trial after completion of the evaluation.
Defendant did not raise this issue again until his amended motion for new trial. The motion
was supported solely with an affidavit from Defendant’s mother stating that Defendant had
a long history of mental illness for which he had received treatment on many occasions. She
also stated that Defendant was “suffering from his mental health condition” at or near the
time of his arrest. Defendant also points out in his brief that he told Trooper Ballew, at the
time of the stop, that he was “going to a mental health appointment.” We note that Trooper

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Ballew testified that Defendant also told him that he was going to a doctor’s appointment in
Atlanta, Georgia to have surgery on his leg. The record does not contain any further
evidence of Defendant’s mental condition. At the hearing on Defendant’s motion for new
trial, the court said:

The defendant’s mental condition, as I recall, was not seriously questioned at
the time other than his demeanor during the stop. I don’t recall any medical
evidence being presented that suggested the defendant was incompetent to
stand trial or assist in his defense and at the time I don’t know that it would
lend any credence to the fact that this evidence should have been suppressed
if he was disoriented or acting in an odd fashion at the time of the stop.

We agree with the trial court that Defendant has failed to present any evidence to
suggest that he was incompetent to stand trial. Therefore, he has failed to demonstrate his
incompetency by a preponderance of the evidence. Defendant is not entitled to relief on this
issue.

Sentencing Issues

On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is improper. See T.C.A. § 40-35-401, Sentencing Comm’n
Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a Defendant
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 presumption that the determinations made
by the court from which the appeal is taken are correct. T.C.A. § 40-35-401(d). This
presumption of correctness, however, “‘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. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008) (quoting State v.
Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails,” and our review is de novo. Carter,
254 S.W.3d at 345 (quoting State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004); State v.
Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)).

In conducting a de novo review of a sentence, this Court must consider (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

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Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. T.C.A. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v. Imfeld, 70
S.W.3d 698, 704 (Tenn. 2002).

Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-
302, which provides, in part, that the trial court shall impose a specific sentence that is
consistent with the purposes and principles of the 1989 Sentencing Reform Act. See T .C.A.
§ 40-35-302(b). A separate sentencing hearing is not required in misdemeanor sentencing,
but the trial court must “allow the parties a reasonable opportunity to be heard on the
question of the length of any sentence and the manner in which the sentence is to be served.”
T.C.A. § 40-35-302(a). A misdemeanor sentence, unlike a felony sentence, has no sentence
range. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997) overruled on other
grounds.

The trial court is allowed greater flexibility in setting misdemeanor sentences than
felony sentences. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). The trial
court, however, must impose a specific sentence for a misdemeanor conviction consistent
with the purposes and principles of the 1989 Criminal Sentencing Reform Act. T.C.A. § 40-
35-302(d); State v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). The trial court should
consider enhancement and mitigating factors in making its sentencing determinations;
however, unlike the felony sentencing statute, which requires the trial court to place its
findings on the record, the misdemeanor sentencing statute “merely requires a trial judge to
consider enhancement and mitigating factors when calculating the percentage of a
misdemeanor sentence to be served in confinement.” State v. Troutman, 979 S.W.2d 271,
274 (Tenn. 1998).

Length of Sentence

Defendant was convicted of possession with intent to deliver more than 0.5 grams of
cocaine, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor.
As a Range I offender, he was subject to a sentence between eight and twelve years for the
cocaine conviction. The applicable punishment for misdemeanor possession of drug
paraphernalia was a sentence up to eleven months, twenty-nine days. The trial court applied
the following enhancement factor: the Defendant has a previous history of criminal
convictions or criminal behavior. T.C.A. § 40-35-114 (1). The trial court did not find any
applicable mitigating factors. On appeal, Defendant supports his argument on the length of
his sentence with only the following statement: “[Defendant] submits there was no basis for
the Court to enhance his sentence.” Initially, we note, as pointed out by the State, Tenn. R.
App. 10(b) requires a defendant to support issues presented in their brief with argument.

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Moreover, the failure to articulate reason in support of mere conclusory statements normally
results in waiver. State v. McKay, 680 S.W.2d 447, 454 (Tenn. 1984).

In any event, the record reflects that the trial court considered the evidence presented
at the trial and the sentencing hearing. The court further considered the presentence report,
the principles of sentencing and the arguments as to sentencing alternatives, the nature and
characteristics of the offenses, the evidence offered by the parties on enhancement and
mitigating factors, and the potential for rehabilitation or treatment. The record in this case
supports the trial court’s finding that Defendant had a previous history of criminal
convictions or behavior. The presentence report reflects that Defendant has prior convictions
in Tennessee for theft, public intoxication, and driving under the influence of an intoxicant
(DUI). He has convictions in Florida for driving on a suspended license and DUI, and in
Georgia for possession of cocaine and heroin. Defendant has a conviction in California for
vandalism.

A trial court is mandated by the Sentencing Act to “impose a sentence within the
range of punishment.” T.C.A. § 40-35-210(c). A trial court, however, “is no longer required
to begin with a presumptive sentence subject to increase and decrease on the basis of
enhancement and mitigating factors.” Carter, 254 S.W.3d at 346. Therefore, an appellate
court is “bound by a trial court’s decision as to the length of the sentence imposed so long
as it is imposed in a manner consistent with the purposes and principles set out in sections-
102 and-103 of the Sentencing Act.” Id.

In Carter, the Tennessee Supreme Court clarified the 2005 changes in Tennessee
sentencing law and stated:

[A] trial court’s weighing of various mitigating and enhancement factors has
been left to the trial court’s sound discretion. Since the Sentencing Act has
been revised to render these factors merely advisory, that discretion has been
broadened. Thus, even if a trial court recognizes and enunciates several
applicable enhancement factors, it does not abuse its discretion if it does not
increase the sentence beyond the minimum on the basis of those factors.
Similarly, if the trial court recognizes and enunciates several applicable
mitigating factors, it does not abuse its discretion if it does not reduce the
sentence from the maximum on the basis of those factors. The appellate courts
are therefore left with a narrower set of circumstances in which they might find
that a trial court has abused its discretion in setting the length of a defendant’s
sentence.

Carter, 254 S.W.3d at 345-46.

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 Thus, a trial court’s “fail[ure] to appropriately adjust” a sentence in light of applicable,
but merely advisory, mitigating or enhancement factors, is no longer an appropriate issue for
appellate review. Id., 254 S.W.3d at 345 (citing State v. Banks, No. W2005-02213-CCA-R3-
DD, 2007 WL 1966039, at *48 (Tenn. Crim. App., at Jackson, July 6, 2007) (noting that
“[t]he 2005 amendment [to the Sentencing Act] deleted appellate review of the weighing of
the enhancement and mitigating factors, as it rendered the enhancement and mitigating
factors merely advisory, not binding, on the trial courts”).

The record clearly shows that the trial court followed the statutory sentencing
procedure, made findings of facts that are adequately supported in the record, and gave due
consideration to the principles that are relevant to sentencing. Based on our review, we
conclude that the enhancement factor considered by the trial court adequately supported the
trial court’s discretionary decision to impose a sentence of eleven years for possession of 0.5
or more grams of cocaine with intent to deliver and eleven months, twenty-nine days for
possession of drug paraphernalia. Defendant is not entitled to relief on this issue.

B. Denial of Probation

Defendant argues that the trial court erred in not granting him probation. Again, as
pointed out by the State, Defendant supports his argument on the manner of service with
only the following statement: “Nor was there any factor of Tenn. Code Ann. § 40-35-103
proven or presented at sentencing that would justify confinement.” As previously stated,
Tenn. R. App. 10(b) requires a defendant to support issues presented in their brief with
argument.

At the hearing on Defendant’s motion for new trial, Defendant specifically argued that
the trial court should have granted him probation or split confinement. On appeal, Defendant
only argues that he should have been granted probation. Because he was convicted of a Class
B felony, Defendant is not considered a favorable candidate for probation. See T.C.A. § 40-
35-102(6). In any event, he is not eligible for probation because he received an eleven-year
sentence. T.C.A. §§ 40-35-102(6), -303(a). Because his sentence is in excess of ten years,
Defendant is also not eligible for split confinement which only applies to defendants
receiving probation. See T.C.A. § 40-35-303(a), -306(a); State v. Charles Steve Miller, No.
03C01-9606-CR-00241, 1997 WL 585749, at *4 (Tenn. Crim. App. Sept. 23, 1997) no.
perm. app. filed. Defendant is not entitled to relief on this issue.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________
THOMAS T. WOODALL, JUDGE

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