State of Tennessee v. Mohamed Omar Muse

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 20, 2008

STATE OF TENNESSEE v. MOHAMED OMAR MUSE

Appeal from the Criminal Court for Davidson County
No. 2005-D-2928 Cheryl Blackburn, Judge

No. M2006-02250-CCA-R3-CD - Filed October 17, 2008

The Appellant, Mohamed Omar Muse, appeals his convictions by a Davidson County jury and
the resulting sentences imposed by the Davidson County Criminal Court for the offenses of sale
of less than point five (.5) grams of cocaine and possession of point five (.5) grams or more of
cocaine with intent to sell or deliver. On appeal, Muse argues: (1) that the evidence offered at
trial was insufficient to support his convictions; (2) that the trial court erred by failing to instruct
the jury regarding casual exchange; (3) that the trial court erred in denying his motion to
suppress evidence seized from his person at the time of his arrest; (4) that the trial court erred in
denying his motion for recusal based upon alleged racial and religious prejudices of the trial
court; and (5) as to sentencing, that the trial court erred in its weighing of mitigating and
enhancement factors and in denying a probationary or community corrections sentence. Upon
complete review of the record and the arguments of the parties, we affirm the judgments of the
trial court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, SR.J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and NORMA MCGEE OGLE, JJ., joined.

Paula Ogle Blair, Nashville, Tennessee, for the Appellant, Mohamed Omar Muse.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Bret Gunn, Assistant District
Attorney General, for the Appellee, State of Tennessee.

OPINION

Factual Background

A Davidson County grand jury returned an indictment charging the Appellant with sale
of less than .5 grams of cocaine, a Class C felony, possession of .5 grams or more of cocaine
with intent to sell or deliver, a Class B felony, and the misdemeanor offenses of possession of
marijuana and resisting arrest. The indictment alleged that the offenses occurred on February 1,
-1-
2005. The State dismissed the charge alleging simple possession of marijuana and the Appellant
pled not guilty to the remaining offenses. A jury trial was conducted on April 17 and 18, 2006.

The proof at trial established that Officer Joel Goodwin of the Metro Nashville Police
Department utilized the services of a paid criminal informant (“CI”), whom he knew to be
reliable and credible based upon previous experiences, to arrange a controlled purchase of
cocaine. The CI used Officer Goodwin’s telephone to call an individual known as “Jamal,” who
directed her to meet an individual driving a blue Crown Victoria who would deliver the cocaine
at a laundry mat. Officer Goodwin provided the CI with fifty dollars of previously photocopied
“buy money.” The CI, who wore a listening device that did not record but was monitored by
Officer Goodwin during the transaction, walked to the laundry mat parking lot and entered the
rear passenger side of a blue Crown Victoria. From his nearby position, Officer Goodwin
observed the CI enter the blue vehicle, and he heard, through the listening device worn by the CI,
the voices of two individuals besides the CI inside the vehicle. Officer Goodwin testified that
there was a primary conversation between the CI and one individual in the vehicle, who had “an
accent,” regarding the amount of cocaine being purchased. The CI then exited the vehicle,
walked back to the vehicle of Officer Goodwin, and gave him a white rock substance which field
tested positive for cocaine. Officer Goodwin spoke with the CI, who affirmed that there were
two people in the blue Crown Victoria, which had pulled away from the parking lot. Officer
Goodwin paid the CI forty dollars for her services and released her.

Officers Josh Walters and James Freeman, who had been serving as “takedown” officers
in the operation and had also been observing the transaction, pursued the blue Crown Victoria
for approximately one mile, ultimately stopping the vehicle which contained two occupants, one
of whom was the Appellant, who was the driver of the vehicle. A search of the Appellant
revealed the fifty dollars in previously photocopied “buy money,”as well as another one hundred
dollars in cash.

Officer Goodwin arrived at the scene after the Appellant had been placed in custody.
Officer Michael Dixon, another responding officer, attempted to search the Appellant. When the
Appellant physically resisted, Officer Dixon “took him to the ground,” at which time the officers
observed a bag of what appeared to be marijuana “between the cheeks” of the Appellant=s
buttocks area. After the Appellant continued to grab and kick at police officers, a chemical
spray was used to subdue him. In addition to the bag containing a small amount of green leafy
substances, officers recovered a bag containing “white rocks” from the Appellant=s buttocks
area. After forensic testing, the rock-like substance obtained from the CI by Officer Goodwin
weighed .2 grams and tested positive for cocaine. The rock-like substance inside the bag
recovered from the Appellant=s buttocks area weighed .9 grams and tested positive for cocaine.

A Davidson County jury returned guilty verdicts on the charges of sale of less than .5
grams of cocaine and possession of .5 grams or more of cocaine with intent to sell or deliver.
The jury acquitted the Appellant of the charge of resisting arrest.

A sentencing hearing was held at which the Appellant testified, and his presentence
report and other exhibits were admitted for consideration by the trial court. The record

-2-
demonstrates that at the time of his arrest on February 1, 2005 for the present charges, the
Appellant was on probation for a July 26, 2004 conviction in Davidson County Docket Number
1389, for Class C felony sale of cocaine. The trial court sentenced the Appellant as a Standard,
Range I offender to five years in the Department of Correction for sale of less than .5 grams of
cocaine, a Class C felony, and ten years in the Department of Correction for the possession of .5
grams or more of cocaine with intent to sell or deliver, a Class B felony. The sentences were
imposed concurrently to each other, resulting in an effective term of ten years. The ten year
sentence was imposed consecutively to the sentence corresponding with the conviction for
Davidson County Docket Number 1389. The Appellant moved for a new trial, and the trial court
denied the motion. The Appellant timely appealed to this court.

Analysis

I. Sufficiency of the Evidence

The Appellant argues that the evidence offered by the State at trial was insufficient to
support his convictions for sale of less than .5 grams of cocaine and possession of .5 grams or
more of cocaine with intent to sell or deliver.

Due process requires that no person shall be made to suffer the onus of a criminal
conviction except upon sufficient proof, which is defined as evidence necessary to convince a
trier of fact beyond a reasonable doubt of the existence of every element of the offense. Jackson
v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 2787 (1979). A jury conviction removes the
presumption of innocence with which a defendant is initially cloaked and replaces it with one of
guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence
is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In our review of the issue of sufficiency of the evidence, the relevant question is
“whether, after viewing the evidence in the light most favorable to the [State], any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (emphasis in original); see also Tenn. R. App. P.
13(e). Moreover, the State is entitled to the strongest legitimate view of the evidence and all
reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.
1992). 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
does not re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
Nor may this court substitute its inferences drawn from circumstantial evidence for those drawn
by the trier of fact. Id. (citing State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); Liakas
v. State, 199 Tenn. 298, 286 S.W.2d 856, 859 (1956)).

a. Sale of less than .5 grams of cocaine

The Appellant argues that the evidence was insufficient to support his conviction for the
sale of less than .5 grams of cocaine. The Appellant contends that the State failed to establish,

-3-
beyond a reasonable doubt, his identity as the person who sold cocaine to the criminal informant
utilized by the police.

In the present case, in order to convict the Appellant of sale of cocaine, the State was
required to prove that: (1) the Appellant sold less than .5 grams of cocaine, and (2) the Appellant
did so knowingly. T.C.A. ' 39-17-417(a)(3), (c)(2)(A) (Supp. 2004). This offense is classified
as a Class C felony. See id.

Officer Goodwin testified that the criminal informant used his telephone, in his presence,
to call an individual named “Jamal” in order to purchase fifty dollars’ worth of cocaine. The CI
then advised Goodwin that she had been instructed to meet an individual driving a blue Crown
Victoria with tinted windows at an area laundry mat. While in his vehicle with the CI, Officer
Goodwin subsequently provided the CI with fifty dollars in previously photocopied “buy
money,” and he observed the CI enter a blue Crown Victoria at the previously described
location. Office Goodwin testified that he listened, via recording device, to a conversation about
the drug transaction, primarily between the CI and another individual who had an accent.1 After
the CI emerged from the blue Crown Victoria, she returned to Officer Goodwin=s vehicle and
handed him a “white rock substance” which field tested positive as cocaine base.2 Officer
Goodwin observed the blue Crown Victoria exit the parking lot of the laundry mat onto
Murfreesboro Road. Following uninterrupted surveillance of the Crown Victoria, Officers
Walters, Freeman and Dixon stopped the vehicle approximately one mile down Murfreesboro
Road and after a search of the Appellant, officers discovered him to be in possession of cocaine
and the previously photocopied “buy money.” We conclude that this evidence, viewed in a light
most favorable to the State, was sufficient to identify the Appellant as the individual responsible
for the sale of cocaine to the CI.

The Appellant further asserts that the State failed to prove that a sale transpired between
the Appellant and the criminal informant because “Detective Goodwin did not search [the
criminal informant’s] private areas” or buttocks prior to the alleged controlled purchase.
However, the evidence clearly established that the CI had already been searched, according to
standard police procedure, prior to engaging in the controlled purchase of cocaine, and that no
drugs were found on her person.

Finally, the Appellant argues that the State failed to prove that he acted knowingly
because he “did not act with awareness,” citing police testimony that the Appellant “appeared to
be confused when he was taken out of the car.” The issue of the Appellant’s mental state was a
question of fact for the jury. Viewing all of the evidence in a light most favorable to the State,

1

Officer Goodwin testified that the other occupant of the blue Crown Victoria, a “Mr. Hughes,” did not speak
with an accent. The presentence report reflects that the Appellant reported that he was born and educated in Somalia,
and that he relocated to Tennessee in 1997. The record further demonstrates that the Appellant used an interpreter while
testifying at the suppression hearing.

2
The CI was not called as a witness at trial.

-4-
we conclude that the evidence was legally sufficient to convict the Appellant of sale of cocaine
beyond a reasonable doubt. This issue is, therefore, without merit.

b. Possession of .5 grams or more of cocaine with intent to sell or deliver

With regard to his conviction for possession of .5 grams or more of cocaine with intent to
sell or deliver, the Appellant “does not dispute the fact that he possessed a substance containing
cocaine[,]” rather, he “disputes that he intended to sell or deliver the cocaine.” He argues that
the evidence was insufficient to support his conviction for this offense, citing the discovery of
the cocaine in his buttocks by police, and proposing that “such a storage place is not a good way
to market and sell a product.” The Appellant further argues that the cocaine seized by police
was intended for personal use.
“It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance with
intent to . . . deliver or sell such controlled substance.” T.C.A. ' 39-17-417(a)(4) (Supp. 2004).
Possession of .5 grams or more of a Schedule II controlled substance with the intent to sell or
deliver is a Class B felony. Id. ' 39-17-417(a)(4), (c)(1). Tennessee Code Annotated section
39-17-419 (Supp. 2004) permits an inference based on the amount of the controlled substance
possessed by the accused, along with other facts surrounding the arrest, that the substance was
possessed for the purpose of selling or otherwise dispensing.

After engaging in the sale of cocaine to the previously described criminal informant, the
Appellant was arrested and searched, and the police obtained a bag containing cocaine from
“between the cheeks” of his buttocks area. Officer Dixon opined that, from his experience,
“often . . . drug dealers keep drugs around their groin area or their buttocks area to hide it . . .
from whoever tries to find it.” The Appellant was arrested in possession of fifty dollars of
previously photocopied “buy money” that had been provided to the criminal informant by police,
as well as another one hundred dollars in cash. Viewing this evidence in a light most favorable
to the State, we conclude that a rational juror could have found the elements of possession of .5
grams or more of cocaine with intent to sell or deliver beyond a reasonable doubt.
Consequently, this issue is without merit.

II. Jury Instructions

The Appellant alleges that “the trial court erred in its failure to instruct the jury on casual
exchange.” As noted by the State, the record before this court does not contain the jury
instructions used in this case. When a party seeks appellate review there is a duty to prepare a
record which conveys a fair, accurate and complete account of what transpired with respect to
the issues forming the basis of the appeal. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
Where the record is incomplete and does not contain a transcript of the proceedings relevant to
an issue presented for review, or portions of the record upon which the party relies, an appellate
court is precluded from considering an issue. Ballard, 855 S.W.2d at 560-61. Absent the
necessary relevant material in the record an appellate court cannot consider the merits of an
issue. Id. at 561 (citing Tenn. R. App. P. 24(b)). The Appellant’s failure to include the jury
instructions in the appellate record, therefore, precludes our consideration of this issue on appeal.

-5-
III. Denial of Motion to Suppress

The Appellant argues that the warrantless search of his pants and buttocks area, which
resulted in the seizure of a plastic bag containing cocaine, was constitutionally impermissible “in
that it was more intrusive and evasive than a ‘Terry [s]earch’ or a typical search incident to
arrest.” He argues that the trial court erred in denying his motion to suppress the seized
evidence.

Our standard of review for a trial court’s findings of fact and conclusions of law on a
motion to suppress evidence was set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).

Under this standard, “a trial court’s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” [Odom, 928 S.W.2d] at
23. As is customary, “the prevailing party in the trial court is afforded the
‘strongest legitimate view of the evidence and all reasonable and legitimate
inferences that may be drawn from that evidence.’” State v. Carter, 16 S.W.3d
762, 765 (Tenn. 2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn.
1998)).

State v. Cox, 171 S.W.3d 174, 178-79 (Tenn. 2005). Nevertheless, we review de novo the trial
court’s application of the law to the facts, without according any presumption of correctness to
those conclusions. Id. at 179 (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v.
Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999)).

“Both the state and federal constitutions offer protection from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and
any evidence discovered is subject to suppression.” State v. Berrios, 235 S.W.3d 99, 104 (Tenn.
2007). Our supreme court has recognized three categories of police interventions with private
citizens: a full scale arrest, which requires probable cause; a brief investigatory detention,
requiring reasonable suspicion of wrong-doing; and a brief police-citizen encounter, requiring no
objective justification. See id. (citing State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000)). Our
supreme court has previously held that our state constitution offers more protection than the
corresponding provisions of the Fourth Amendment. See, e.g., State v. Jacumin, 778 S.W.2d
430, 436 (Tenn. 1989); State v. Lakin, 588 S.W.2d 544, 549 (Tenn. 1979). “As under the federal
constitution, evidence obtained as a result of a warrantless search or seizure ‘is subject to
suppression unless the State demonstrates that the search or seizure was conducted pursuant to
one of the narrowly defined exceptions to the warrant requirement.’” Berrios, 235 S.W.3d at
105 (quoting State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

One exception to the warrant requirement is a contemporaneous police search that
follows a lawful arrest. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999) (citing Chimel v.
California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969)); State v. Watkins, 827 S.W.2d
293, 295 (Tenn. 1992)). When police officers make a lawful custodial arrest, they are permitted,
as incident to the arrest, to search the person arrested and the immediately surrounding area. Id.
(citing Chimel, 395 U.S. at 763, 89 S. Ct. at 2040). The rationale for those searches is the need

-6-
to disarm the arrestee in order to safely take him into custody, and the need to preserve evidence
for later use at trial. Id. (citing United States v. Robinson, 414 U.S. 218, 234, 94 S. Ct. 467, 476
(1973)).

At the suppression hearing held in this case, the trial court heard testimony from
Detective Goodwin and the Appellant, in addition to arguments of counsel, regarding the arrest
and resulting search of the Appellant. In its oral ruling from the bench, the trial court denied the
Appellant=s motion to suppress, stating:

Basically the argument based on this warrantless search is that B and,
[defense counsel], . . . your supporting theory is that there was no reasonable
suspicion, therefore, the plain feel, the plain touch B sort of a [Terry] search.
Well, that’s not this case. Clearly they had probable cause to arrest the defendant.

Now, some of the body cavity search issues . . . basically where [the
police] have no idea, and they do an invasive search. In this particular case they
could clearly see [the] bag from where they were searching the defendant.

The evidence does not preponderate against the trial court’s finding that the challenged
search and seizure of the Appellant by police occurred incidentally to his arrest for sale of
cocaine. We agree with the trial court’s determination that the Appellant’s reliance on Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is misplaced. Under the Terry stop exception to the
search warrant requirement, a law enforcement officer may temporarily seize a citizen if the
officer has a reasonable suspicion, based upon specific and articulable facts, that a criminal
offense has been, is being, or is about to be committed. See Terry, 392 U.S. at 21, 88 S. Ct. at
1880; State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). In the present case, a warrantless
arrest occurred lawfully pursuant to Tennessee Code Annotated section 40-7-103, and was
clearly based upon probable cause. The police lawfully seized the bag containing cocaine from
the Appellant’s buttocks area as it became visible, contemporaneously with his arrest. This
search was permitted under a different exception to the warrant requirement, a search incident to
arrest. See Crutcher, 989 S.W.2d at 300. Following review, we conclude that this issue is
without merit.

IV. Denial of Motion for Recusal

The Appellant, who identifies himself as “a Muslim man of color,” contends that the trial
court erred in its refusal to recuse itself from his trial for the underlying offenses, alleging bias
held by the trial court toward him because of his color, nationality, and religion.

At a hearing on his motion for recusal, the Appellant testified regarding his allegations of
discrimination by the trial court in a prior case. The Appellant testified that he intended to file a
civil suit against the trial court based upon its alleged prejudice against him, and the crux of
these assertions focused upon a prior case in which he had appeared before the trial court and
ultimately entered a “best interest” plea and received probation. According to the Appellant:

-7-
 The first time, I was late in court for like five minutes, right, and then
Your Honor asked me to go get a piss test. I said no problem. I passed the piss
test, you know, but there was a white guy that came [twenty] minutes later than
me. She didn’t say nothing [sic] to him. That made me very upset.

The Appellant further alleged that the trial court had later discriminated against him, after he
violated probation, by ordering him to complete a particular drug treatment program which was
not available at the facility where he was transferred. In summary, the Appellant testified:

In my eyes, I feel this Judge is discriminating against me, sending me to the
wrong facility, and doing all kinds of stuff that I feel is racism . . . I feel . . . like
I’m better off with a Judge that can deal with somebody with a mental health
condition and can understand my problems and not judge me by my skin color or
my religious beliefs.

The general rule is that a trial judge should recuse himself whenever he has any doubt as
to his ability to preside impartially in a criminal case or whenever his impartiality can reasonably
be questioned. State v. Cash, 867 S.W.2d 741, 749 (Tenn. Crim. App. 1993); Lackey v. State,
578 S.W.2d 101, 104 (Tenn. Crim. App. 1978). A judge is in no way disqualified because he
tried and made certain findings in previous litigation. King v. State, 391 S.W.2d 637, 642 (Tenn.
1965). The matter of recusal is left to the sound discretion of the trial court and will not be
reversed on appeal unless clear abuse appears on the face of the record. State v. Boggs, 932
S.W.2d 467, 472 (Tenn. Crim. App. 1996) (citing Cash, 867 S.W.2d at 749; Caruthers v. State,
814 S.W.2d 64, 67 (Tenn. Crim. App. 1991)).

The trial court denied the Appellant’s motion for recusal. As to the Appellant’s assertion
that the trial court sent him to “the wrong facility,” the trial court noted that such matters are
controlled by the Sheriff’s Department, rather than the trial court. Regarding the Appellant’s
religious beliefs, the trial court stated that it “had no idea what [his] religion is.” The record
does not preponderate against these findings. We further observe that no record of the prior
proceedings appears in the record before this court. After review, we conclude that no abuse of
discretion by the trial court appears on the face of the record. Accordingly, this issue is without
merit.

V. Sentencing

Finally, the Appellant appeals the length and manner of the sentences imposed by the
trial court.

On appeal, the party challenging the sentence imposed by the trial court has the burden of
establishing that the sentence is erroneous. See T.C.A. ' 40-35-401, Sentencing Comm'n
Comments. 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) (2005). The presumption of correctness is conditioned upon the affirmative

-8-
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999). In this case, the
record demonstrates that the trial court considered the sentencing principles and all relevant facts
and circumstances in imposing the sentences.

When conducting a de novo review of a sentence, we must consider: (1) any evidence
received at the trial and/or sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the
offense; (5) any mitigating or enhancement factors; (6) any statements made by the defendant on
his or her own behalf; and (7) the potential for rehabilitation or treatment. T.C.A. ' 40-35-210
(2005); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001).

At sentencing, the Appellant’s presentence report was admitted into evidence, and the
Appellant, who was thirty-four at the time of sentencing, offered lengthy testimony on his own
behalf. The Appellant testified that he has a fiancée and two children. The Appellant detailed
his previous work history as a driver for a parking lot and a taxi driver, and he more recently
worked at Arby’s restaurant and for a temporary labor company. He testified that he was
twenty-eight years old when he began smoking crack cocaine and that he had been battling
addiction for five years. He reported that he had completed drug treatment programs since his
incarceration. The Appellant also claimed to be suffering from a mental condition that made it
difficult for him to function without medication, and he further characterized his mental
condition as “hav[ing] different personalities.” The Appellant denied selling cocaine on the
night of his arrest, claiming that the other occupant of the vehicle had sold the drugs to the
criminal informant. He further maintained that the cocaine seized from his person was intended
for his personal use.

a. Sentence Lengths: The Weighing of Mitigating and Enhancement Factors

The Appellant argues that the trial court failed to give weight to mitigating factors and
erred in the weight given to enhancement factors in determining the appropriate sentence
lengths. He contends that the trial court attributed no weight to the mitigating factor that no
weapon was used in the commission of the crimes or to the Appellant=s alleged mental illness.
The Appellant further argues that the trial court attributed too much weight to the enhancement
factors that the Appellant had a previous history of criminal convictions or behavior in addition
to those necessary to establish the appropriate range, a factor which he contends should have
been afforded less weight considering his drug addiction and mental illness.

The Appellant executed a written waiver of his ex post facto rights to be sentenced under
the pre-2005 sentencing provisions in effect at the time the offenses were committed, electing
rather, to be sentenced under the June 7, 2005 sentencing amendments. The amended statute no
longer imposes a presumptive sentence. State v. Stacey Joe Carter, No. M2005-02784, SC-R11-
CD (Tenn. May 19, 2008). As further explained by our supreme court in Carter,

the trial court is free to select any sentence within the applicable range so long as
the length of the sentence is “consistent with the purposes and principles of [the

-9-
 Sentencing Act].” [T.C.A.] ' 40-35-210(d). Those purposes and principles
include “the imposition of a sentence justly deserved in relation to the seriousness
of the offense,” id. ' 40-35-102(1), a punishment sufficient “to prevent crime and
promote respect for the law,” id. ' 40-35-102(3), and consideration of a
defendant’s “potential or lack of potential for . . . rehabilitation,” id. ' 40-35-
103(5).

Id. (footnote omitted).

The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing of
the enhancement and mitigating factors, as it rendered these factors merely advisory, as opposed
to binding, upon the trial court’s sentencing decision. Under current sentencing law, the trial
court is nonetheless required to “consider” an advisory sentencing guideline that is relevant to
the sentencing determination, including the application of enhancing and mitigating factors. The
trial court’s weighing of various mitigating and enhancing factors is now left to the trial court’s
sound discretion. Id. Thus, the 2005 revision to Tennessee Code Annotated section 40-35-210
increases the amount of discretion a trial court exercises when imposing a sentencing term. Id.
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a
lawful sentence after giving due consideration to the principles set out under sentencing law, and
the trial court’s findings of fact are adequately supported by the record, then we may not disturb
the sentence even if we would have preferred a different result. State v. Pike, 978 S.W.2d 904,
926-27 (Tenn. 1998).

The State argued application of the following enhancement factors: the Appellant has a
previous history of criminal behavior in addition to those necessary to establish the appropriate
range; the Appellant, before trial or sentencing, has failed to comply with the conditions of a
sentence involving release into the community; and at the time the felony was committed, the
Appellant was released on probation. See T.C.A. ' 40-35-114 (1), (8), (13)(C) (2005). The
defense submitted the following mitigating factors for consideration by the trial court: the
defendant’s criminal conduct neither caused or threatened serious bodily injury, and the
defendant was suffering from a mental or physical condition that significantly reduced his
culpability for the offense. See id. ' 40-35-113 (1), (8).

The trial court correctly noted that the Appellant had a prior felony conviction and
several misdemeanor convictions, making enhancement factor (1) applicable. The trial court
further applied enhancement factors (8) and (13), in light of the Appellant’s probation status
when he was arrested on the charges underlying this appeal. The trial court stated that it placed
great weight on factors (1) and (13). The trial court found only one mitigating factor applicable,
that the Appellant’s conduct neither caused nor threatened serious bodily injury. The court
proceeded to sentence the Appellant to ten years for the Class B felony conviction and five years
for the Class C felony conviction.

Our review reflects that the trial court followed the statutory sentencing procedure,
imposed appropriate sentence lengths after giving due consideration to the principles set out
under sentencing law, and that the trial court’s findings of fact are adequately supported by the

-10-
record. Accordingly, as the weighing of the various factors is left to the trial court’s discretion,
we may not disturb the sentence. This issue is, therefore, without merit.

b. Denial of Probation and Community Corrections

The Appellant argues that the trial court erred in refusing to allow him to serve his
sentences on probation or community corrections. The Appellant submits that “he was once a
hard working individual, who paid his bills and caused no problems in the community[. . .][b]ut
because of his mental illness and drug addiction he became a different man.”

Effective June 7, 2005, our legislature amended Tennessee Code Annotated section
40-35-102(6) by deleting the statutory presumption that a defendant who is convicted of a Class
C, D, or E felony, as a mitigated or standard offender, is a favorable candidate for alternative
sentencing options. Our sentencing law now provides that a defendant who does not possess a
criminal history showing a clear disregard for the laws and morals of society, who has not failed
past rehabilitation efforts, and who is an especially mitigated or standard offender convicted of a
Class C, D, or E felony should be considered as a favorable candidate for alternative sentencing
options in the absence of evidence to the contrary. T.C.A. ' 40-35-102(5), (6) (2005) (emphasis
added). The greater offense for which the Appellant was convicted is a Class B felony.
Consequently, the Appellant is not considered a favorable candidate for alternative sentencing
for this offense.

The trial court determined that although the Appellant was eligible for alternative
sentencing options, such a sentence would not be appropriate in this case. The trial court based
this determination on the Appellant’s history of criminal behavior and his probation status at the
time of his arrest, specifically finding that measures less restrictive than confinement had been
frequently or recently applied unsuccessfully to the Appellant. Following de novo review, we
conclude that the trial court’s findings on this issue are supported by the record. Because the
Appellant has failed to carry his burden of establishing that the sentences imposed are erroneous,
no relief is warranted.

CONCLUSION

Based upon the foregoing, the judgments of the Davidson County Criminal Court are
affirmed.

___________________________________
DAVID G. HAYES, SENIOR JUDGE

-11-