State of Tennessee v. Marcus Thompson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 22, 2003

STATE OF TENNESSEE v. MARCUS THOMPSON

Direct Appeal from the Criminal Court for Sullivan County
No. S41,514 Phyllis H. Miller, Judge

No. E2001-02521-CCA-R3-CD
August 22, 2003

The appellant, Marcus Thompson, was convicted in the Sullivan County Criminal Court of one count
of conspiracy to sell or deliver cocaine, one count of possession of cocaine with the intent to sell or
deliver, and one count of selling and delivering cocaine. The trial court imposed a total effective
sentence of forty years incarceration in the Tennessee Department of Correction and fines totaling
$150,000. On appeal, the appellant raises several issues for our review, including speedy trial,
sufficiency of the evidence, double jeopardy, evidentiary rulings, and sentencing. Upon review of
the record and the parties’ briefs, we affirm the judgments of the trial court but reduce the amount
of the appellant’s fines to a total amount of $50,000.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Affirmed as
Modified.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT , JR., JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); William A. Kennedy, Blountville, Tennessee
(on appeal); and James Bowman, Johnson City, Tennessee (at trial), for the appellant, Marcus
Thompson.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Robert Montgomery, Assistant District
Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
On September 8, 1998, the Sullivan County Grand Jury returned a multi-count
presentment against the appellant charging him in count one with conspiring between March 30,
1998, to April 30, 1998, to sell or deliver more than 300 grams of cocaine;1 count two with the
possession of 300 grams or more of cocaine on or about April 30, 1998, with the intent to sell or
deliver; count three with selling or delivering .5 grams or more of a substance containing cocaine
on or about April 30, 1998; count four with possessing drug paraphernalia on or about April 30,
1998; and count five with possessing over one-half ounce of marijuana on or about April 30, 1998.
On December 15, 1998, the appellant was indicted in federal court for conspiracy to distribute and
possess cocaine “beginning approximately the month of September, 1996, and continuing to on or
about May 1, 1998.” On January 1, 1999, the appellant was released into federal custody and the
original trial date of February 24, 1999, was reset.

After pleading guilty to the federal charge, the appellant was returned to state custody
on April 10, 2000. On July 21, 2000, the appellant filed a motion for speedy trial and the dismissal
of his charges on double jeopardy grounds because of the federal charges. After a hearing on the
motion on July 28, 2000, the trial court determined that the appellant was not entitled to a dismissal
of his charges on double jeopardy grounds and further determined that the appellant had
demonstrated “no actual prejudice” because of the delay.

Trial commenced on May 21, 2001. The State called Larry Robbins as its first
witness. Robbins testified that in April 1998, he worked for the Johnson City Police Bureau and was
assigned to work as an agent for the 1st Judicial District Drug Task Force (1st DTF). Robbins
explained that “[t]he First District is made up of our (4) four counties, Washington, Carter, Unicoi
and Johnson, and each department is encouraged to send an employee from their department to the
Drug Task Force to work as one entity to work the drugs in that four county area.” Robbins related
that often the cases crossed the county lines into another jurisdiction and thereupon the 1st DTF
would contact the drug task force from the other jurisdiction and the two forces would work together.

The 1st DTF arranged a controlled buy of one ounce of crack cocaine from Sanford
Whetsel, also known as Turk Whetsel, on April 29, 1998. Upon his arrest and in exchange for a
possible “recommendation from the D.A.,” Whetsel agreed to arrange for his supplier, Melisa Long,
to bring him more crack cocaine. At that time, Long resided in Kingsport, outside the jurisdiction
of the 1st DTF. Accordingly, Whetsel arranged for Long to bring two ounces of crack cocaine to a
McDonald’s Restaurant in Gray, a locale in Washington County, which was within the jurisdiction
of the 1st DTF. The agreed purchase price was $1,600 or $1,800 an ounce. Robbins further noted
that “[s]omeone who’s buying an ounce at a time is someone that’s going to be reselling it.”

Later on April 29, 1998, Long brought the crack cocaine to the prearranged location
and she was arrested. Robbins talked with Long about cooperating with the 1st DTF to “help herself
out and hopefully get a recommendation towards the D.A. about her involvement.” Long revealed
that her supplier, the appellant, was located in Sullivan County, within the jurisdiction of the 2nd

1
The names of the appellant’s co-conspirators are marked out on the presentment included in the record.
However, the jury instructions reveal that the appellant was charged with conspiring with Jenice Thompson and Daryl
R. W illiams, a.k.a. Daryl R. Lathen.

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Judicial District Drug Task Force (2nd DTF). Robbins contacted Brian Bishop, the Director of the
2nd DTF and asked for cooperation in apprehending Long’s supplier. Director Bishop agreed to help.

Later that evening, Long, acting per her agreement with the 1st DTF, made a telephone
call to a certain number to arrange a drug transaction with the appellant. Robbins saw the number
that Long dialed, but he was unable to overhear the conversation. Thereafter, agents with the 1st DTF
drove Long to Sullivan County. Prior to the arranged buy, Long’s person and possessions were
searched and no contraband was found. The rest of the arranged buy was conducted through
members of the 2nd DTF.

Robbins related that Long was charged with a crime in the Washington County
Criminal Court and that those charges were still pending at the time of trial. Robbins opined that
Long hoped her case would be dismissed in return for her cooperation with the authorities.

Melisa Long testified that she was arrested by Robbins on April 29, 1998, at a
McDonald’s Restaurant in Gray. Robbins asked Long to tell him where she obtained the crack
cocaine. Long revealed that the appellant was her supplier. After agreeing to help the 1st DTF
apprehend the appellant, Long called the appellant from a pay phone outside the McDonald’s
Restaurant. Long told the appellant that “I needed more of what I had before,” indicating that she
needed two more ounces of crack cocaine. Long asserted that the price of the crack cocaine was over
$1,000 an ounce, but that she already knew the price before she called. The appellant directed Long
to go to the house of his cousin, Jenice Thompson, to obtain the drugs. Specifically, Long testified
that “[the appellant] told me to go. I mean, he told me to go there. I been there before. And he told
me to go.”

Long further stated that within thirty days prior to April 29, 1998, she had been to
Thompson’s residence to obtain cocaine at the appellant’s direction. The appellant objected to this
testimony, but the objection was overruled. Long asserted that on the previous occasion, she went
to Thompson’s apartment in the Amber Court Apartments on Moreland Drive. Thompson’s
boyfriend, Daryl Williams, also known as Daryl Lathen, was also at the apartment. Long did not
give Thompson or Williams any money; however, she obtained cocaine from one of them. Long
could not specifically recall whether Thompson or Williams gave her the cocaine. Long did not have
to ask for the cocaine because “[t]hey knew what I was coming for.”

In the early morning hours of April 30, 1998, Director Bishop with the 2nd DTF drove
Long to Thompson’s apartment. While Director Bishop waited in the vehicle, Long went inside
Thompson’s apartment. Once again, both Thompson and Williams were in the apartment. “They”
gave Long the crack cocaine. Long explained that she did not remember which person gave her the
crack cocaine, but did recall that it was either Thompson or Williams. Long also stated that she did
not have to tell Thompson or Williams why she was there. Long apologized for being late and
placed the crack cocaine in her purse. She did not give Thompson or Williams any money at that
time. Long then left the apartment and got into the car with Director Bishop to whom she
relinquished possession of the crack cocaine.

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 Later in the afternoon of April 30, 1998, Long called the appellant and arranged to
meet him in the parking lot of a Revco drugstore on Stone Drive in order to pay him for the crack
cocaine. Long was to pay the appellant $3,600 which she obtained from DTF agents.

Soon after the telephone call, the appellant arrived at the Revco parking lot. Long
sat in the front passenger seat of the appellant’s vehicle. Long told the appellant that she had the
money and the appellant instructed Long to put the money in the glove compartment of his vehicle.
Long removed the money from her purse and placed $3,300 in the appellant’s glove compartment.
Long explained that she kept $300 of the money because
I guess it was my – for making like going down there and making a
run or whatever, I guess that’s what I was supposed to get paid out of
it.
....
I think we, maybe it was supposed to have been maybe a hundred an
ounce or something like that, so it come up to be three ounces, so
three hundred dollars ($300.00).2
After Long placed the money in the glove compartment, she and the appellant talked for a short time.
Shortly thereafter, they were approached by the authorities and were arrested.

Long testified that she had known the appellant for approximately ten years and they
had attended high school together. Long admitted that she had been the appellant’s girlfriend in high
school, but after Long became pregnant, the appellant ended the relationship. Approximately ten
years after the end of their relationship, Long encountered the appellant in a club and renewed their
acquaintance. Soon thereafter, Long contacted the appellant about purchasing crack cocaine for her
sister who was an addict. She explained that “I’m not ready to go out in the street and buy no drugs.”
Long asserted that she did not use drugs at the time of the offenses.

Long testified that she had never been charged with a crime in Sullivan County but
still had charges in Washington County which had been pending for approximately three years.
Nevertheless, Long hoped to have the charges dismissed. Long admitted that she never took drugs
directly from the appellant’s hands, “but he would tell me where to get it.”

Regarding the ounce of crack cocaine she sold to Whetsel, Long related that initially
she did not have to pay for those drugs. Instead, the drugs were “fronted” to Long because she
already had a buyer for the crack cocaine. After receiving the money from the buyer, Long was to
return with the money and pay for the cocaine. Long explained that even though she had obtained
crack cocaine from Thompson and Williams on previous occasions, “they’re not going to front
anything to me if he [the appellant] didn’t tell them to.”

2
Long was being paid by the appellant for the ounce she supposedly sold W hetsel and for the two ounces she
purchased for the DTF.

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 Long stated that in the thirty days prior to April 29, 1998, she had obtained drugs
through the appellant on three occasions. She opined that “the first one, I probably was at the bridge.
The second two maybe had been at the house [of Thompson]. That was three years ago. I don’t
really remember that far back.” Long related that the bridge was at “John B. Dennis and Moreland
Drive.” She stated that Thompson’s apartment was also on Moreland Drive. Furthermore, Long
testified that prior to obtaining drugs from underneath the bridge, she spoke with the appellant. The
appellant instructed Long to go to that particular location to obtain the crack cocaine.

Brian Bishop, the director of the 2nd DTF, testified that at approximately midnight on
April 29, 1998, he was contacted by the 1st DTF and was advised “that a pick up of cocaine had been
arranged.” Subsequently, agents with the 1st DTF brought Long to Sullivan County to meet with
Director Bishop. Director Bishop searched Long’s person and belongings prior their departure for
Thompson’s apartment. Long had no contraband or money on her person or in her purse. Director
Bishop then drove Long to Thompson’s apartment on Moreland Drive at approximately 1:00 a.m.
on April 30, 1998. Director Bishop waited in the vehicle while Long went into the apartment. Long
returned to the vehicle with what appeared to be two ounces of crack cocaine. Director Bishop
testified that such an amount of crack cocaine was far too large for personal use.

Director Bishop next had contact with Long on the afternoon of April 30, 1998. Long
had arranged to meet the appellant in the Revco parking lot to pay for the drugs. Long was wired
with a body transmitter and the agents monitored the transaction with a receiver. Long was given
$3,600 prior to meeting with the appellant to pay for the crack cocaine. When the agents heard a pre-
arranged signal, they moved in and took the appellant into custody. During a search of the vehicle,
the agents discovered the money in the glove compartment of the appellant’s vehicle.

Based upon these events, the authorities obtained a search warrant for Thompson’s
apartment. Director Bishop and officers with the 1st DTF, the Kingsport Police Department, and the
Sullivan County Police Department were involved in the execution of the search warrant on April
30, 1998, at 9:00 p.m.

Director Bishop stated that Thompson had a two-bedroom apartment. One of the
bedrooms appeared to be a child’s room. On the top shelf of the closet in the child’s room, officers
discovered a cardboard box containing a plastic shopping bag. Inside the shopping bag were several
large bags of white powder, two smaller bags of white powder, and two bags of a green leafy
substance believed to be marijuana. Director Bishop opined that the white powder was cocaine and
he estimated that the bags contained half a kilogram, or 500 grams, of cocaine. On the top shelf of
the second bedroom, the officers discovered a small bag containing several plastic sandwich bag
“corners” of white powder substance, also believed to be cocaine, which was packaged for resale.
The officers also discovered a set of digital scales which Director Bishop explained could be used
in the weighing of controlled substances. Additionally, officers discovered more plastic sandwich
bags of the type used to package cocaine for resale.

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 Director Bishop stated that no money was found in Thompson’s apartment.
Moreover, there were no expensive-looking items in the apartment. Director Bishop concluded that
the marijuana discovered was packaged as if for resale and had a street value of $225 or $250.
Director Bishop also explained that crack cocaine was typically smoked, but the officers found no
device in the apartment for the smoking of crack cocaine. Furthermore, Director Bishop stated that
powder cocaine could either be snorted or injected, but no implements for either type of use were
discovered in Thompson’s apartment. Director Bishop admitted that although various items were
checked for fingerprints, “there were no prints developed that were identified [as the appellant’s].”
However, there were also no fingerprints which were “identified” as belonging to Thompson or
Williams even though they both resided in the apartment.

Agent Denise Buckner with the Tennessee Bureau of Investigation (TBI) crime
laboratory in Knoxville testified that she analyzed a portion of the substances obtained by the police
during these events. Both the State and the appellant stipulated that Agent Buckner was an expert
in drug chemistry. Agent Buckner testified that she analyzed two bags of a substance and
determined that it was 53.11 grams of cocaine base, which is also known as crack cocaine.

Next, the State and the appellant stipulated that Agent David Holloway, a forensic
chemist with the TBI crime laboratory, was an expert in forensic chemistry. Agent Holloway
testified that he analyzed a total of 467.8 grams, or 1.03 pounds, of powder cocaine which was
obtained from Thompson’s apartment. Agent Holloway also asserted that the green leafy substance
weighed 32.46 grams and tested positive for marijuana.

Robbins was recalled to the stand and he testified that Long dialed the same telephone
number to obtain the drugs as she had dialed to arrange payment for the drugs. Soon after the second
telephone call, the appellant arrived at the Revco parking lot.

Based upon the foregoing, the trial court granted a judgment of acquittal on count five
of the presentment, determining that no proof was adduced that the appellant was involved in the
possession of marijuana as alleged in that count. The jury found the appellant not guilty of the
possession of drug paraphernalia, but returned guilty verdicts on the conspiracy, possession, and sale
counts.

Subsequent to a sentencing hearing, the trial court sentenced the appellant as a Range
II multiple offender to twenty years incarceration for each offense. The trial court further determined
that the appellant committed the offenses while on parole for a previous offense and ordered that the
sentences for the instant convictions be served consecutively to the earlier sentence. Additionally,
the trial court found that the appellant was a professional criminal and had an extensive record of
criminal activity, and thus it ordered that the sentence for count three be served consecutively to
count one. The sentence for count two was to be served concurrently with count one for a total
effective sentence of forty years incarceration.

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 On appeal, the appellant raises the following issues for our review: (1) whether the
evidence is sufficient to support the appellant’s convictions; (2) whether the appellant was denied
his constitutional right to a speedy trial; (3) whether the appellant was subjected to double jeopardy
because his state and federal convictions were based upon the same underlying criminal activity; (4)
whether the appellant was subjected to double jeopardy based upon his convictions for conspiracy
to sell cocaine and the sale of cocaine and possession with the intent to sell cocaine; (5) whether the
trial court erred in admitting Long’s testimony regarding the previous sales of cocaine at Thompson’s
apartment; (6) whether the appellant’s due process rights were violated by the State withholding
exculpatory evidence; and (7) whether the sentences imposed were excessive.3

II. Analysis
A. Speedy Trial
We note that “[t]he right to a speedy trial arises under the Sixth Amendment to the
Constitution of the United States made applicable to the State by the Fourteenth Amendment . . . and
Article 1, [section] 9 of the Constitution of Tennessee.” State v. Bishop, 493 S.W.2d 81, 83 (Tenn.
1973). In analyzing the speedy trial issue, four factors are important: “the length of the delay, the
reason for the delay, the defendant’s assertion of the right, and the prejudice suffered by the
defendant from the delay.” State v. Utley, 956 S.W.2d 489, 492 (Tenn. 1997) (citing Barker v.
Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972)).

“The right to a speedy trial attaches at the time of arrest or indictment, whichever
comes first, and continues until the date of the trial.” State v. Vickers, 985 S.W.2d 1, 5 (Tenn. Crim.
App. 1997). A delay of one year or longer will trigger an inquiry into a speedy trial violation. See
State v. Simmons, 54 S.W.3d 755, 759 (Tenn. 2001). In the instant case, the appellant was arrested
on April 30, 1998, and trial began on May 21, 2001, a delay of well over one year. Thus, we must
examine the remaining factors to determine whether there has been a speedy trial violation.

The second factor, the reason for delay, generally falls into one of four categories:
“(1) intentional delay to gain a tactical advantage over the defense or delay designed to harass the
defendant; (2) bureaucratic indifference or negligence; (3) delay necessary to the fair and effective
prosecution of the case; and (4) delay caused, or acquiesced in, by the defense.” State v. Wood, 924
S.W.2d 342, 346-47 (Tenn. 1996) (footnotes omitted). In this case, the appellant was taken into
federal custody on January 30, 1999, and he remained in federal custody for approximately one year.
The appellant testified that during this time, he and defense counsel “were, I guess negotiating a
defense and trying to, I don’t know, weigh my options and see which avenue we could take and see
which would have been better for me as his client.” A large portion of the delay in the State’s case
was attributed to waiting for the conclusion of the appellant’s federal prosecution before
commencing his state prosecution. On April 14, 2000, the appellant pled guilty in federal court to
“[c]onspiracy to distribute and possess with the intent to distribute cocaine hydrochloride and
cocaine base ‘crack.’”

3
W e have chosen to address the appellant’s issues in a different order than that in which they were raised in
the appellant’s brief.

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 However, the appellant and the State agree that the record does not reveal the reason
for the delay between the hearing on the appellant’s motion for a speedy trial, which occurred on July
28, 2000, and the date of trial, May 21, 2001. We determine that “[t]he State’s inability to offer any
reason for the [further] delay in bringing the defendant to trial is evidence of [negligence or]
bureaucratic indifference.” State v. Willie Johnson, No. W2001-02929-CCA-R3-CD, 2003 WL
141045, at *11 (Tenn. Crim. App. at Jackson, Jan. 14, 2003), perm. to appeal denied, (Tenn. 2003).
After examination of the record, we conclude that this factor weighs against the State, but it is
entitled to little weight.

In addressing the third factor in our analysis, we note again that the appellant moved
for a speedy trial in July 2000, three years after the commencement of proceedings. Less than one
year after asserting this right, the appellant was brought to trial. This factor weighs in favor of the
appellant. See Vickers, 985 S.W.2d at 6. However, the appellant’s lengthy delay in asserting his
right to a speedy trial makes this factor less persuasive. See State v. Charles B. Jackson, Jr., No. 89-
16-III, 1989 WL 155948, at *2 (Tenn. Crim. App. at Nashville, Dec. 29, 1989). We also note that
on the day of trial the appellant asked for a thirty day continuance to “re-go over” the case with
counsel, indicating a lack of interest in bringing his case to trial in a timely fashion.

Finally, we must determine whether the appellant was prejudiced by the delay. Wood,
924 S.W.2d at 348. This is the “final and most important factor in the [speedy trial] analysis.”
Simmons, 54 S.W.3d at 760. Our supreme court has explained that “when evaluating this factor
courts must be aware that the speedy trial right is designed: (1) to prevent undue and oppressive
incarceration prior to trial; (2) to minimize anxiety and concern accompanying public accusation;
and (3) to limit the possibilities that long delay will impair the defense.” Id.

Based upon the record before us, we cannot conclude that the appellant suffered any
prejudice by the delay in prosecution. The appellant does not claim that the delay in bringing his
case to trial impaired his ability to present a defense, “the most important issue concerning prejudice
to the defendant.” State v. Vance, 888 S.W.2d 776, 778 (Tenn. Crim. App. 1994). The appellant
was incarcerated prior to trial, but the incarceration was due to a parole violation, not the instant
charges. The appellant does not argue that he was subjected to “undue and oppressive incarceration
prior to trial.” Instead, the appellant contends that
[i]t is obvious from appellant’s testimony during the motion hearing
that he experienced anxiety and concern regarding the State charges
as would relate to possible sentencing. Appellant testified that federal
authorities advised him that if he was sentenced upon the State
charges, his federal sentence would run concurrent to the state
sentence. Facing the possibility of consecutive sentencing while
remaining in federal custody upon the inaction of the State would
undoubtedly cause concern and anxiety. Of course, in the end
appellant’s state sentence was run concurrent to the federal sentence,
but appellant had no way of knowing this would be the end result.

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 As the appellant acknowledges, the sentence in the instant case was ordered to be
served concurrently with his federal case. At the hearing on the appellant’s speedy trial motion, the
trial court noted that
I don’t find that the [appellant] has demonstrated any actual prejudice.
. . . I mean there’s no evidence that he would have been given
concurrent time by the federal court system, by the federal prison
system if that’s only a recommendation by the judge, and it’s up to
the prison system. . . . [I]t seemed to be an acknowledgment on both
parties part when it was, when the case was reset so many times, and
of course there was no statement that he’s losing any opportunity to
ask for anything.
See Simmons, 54 S.W.3d at 761 (observing that “a lost possibility of obtaining concurrent
sentencing is not sufficient prejudice to establish a speedy trial violation”). We agree with the trial
court and conclude that appellant is not entitled to relief on this issue.

B. Long’s Testimony
The appellant complains that the trial court erred by allowing Long’s testimony
regarding prior cocaine deals with the appellant. The appellant contends that these deals constituted
other bad acts and he was thereby entitled to the protections of Tennessee Rule of Evidence 404(b).
The appellant admits that the trial court held a hearing in compliance with Rule 404(b), but argues
that the trial court reached the wrong result.

Initially, we note that the appellant concedes that he failed to raise this issue in his
motion for new trial, thus waiving the issue on appeal. See Tenn. R. App. P. 3(e). Nevertheless, the
appellant contends that this court may address this issue as plain error. Tennessee Rule of Criminal
Procedure 52(b) explains that this court may address “[a]n error which has affected the substantial
rights of an accused . . . at any time, even though not raised in the motion for a new trial . . . where
necessary to do substantial justice.” See also Tenn. R. Evid. 103(d); State v. Adkisson, 899 S.W.2d
626, 640 (Tenn. Crim. App. 1994). Regardless, the appellant has failed to convince this court that
the trial court committed error in admitting Long’s testimony.

Evidence that a defendant has committed crimes, wrongs, or acts other than those
crimes for which he is being tried is not admissible to prove his character and thereby show action
in conformity with the character trait. See Tenn. R. Evid. 404(b); State v. Hall, 958 S.W.2d 679, 707
(Tenn. 1997). Nevertheless, such evidence is admissible under Rule 404(b) if it is relevant to a
material issue in the case on trial and if its probative value is not outweighed by the danger of its
prejudicial effect. Hall, 958 S.W.2d at 707.

In order to permit the admission of the evidence, the court must find by clear and
convincing evidence that the appellant committed the prior crime. See State v. McCary, 922 S.W.2d
511, 514 (Tenn. 1996). Generally, “[o]nly in an exceptional case will another crime, wrong, or bad
act be relevant to an issue other than the accused’s character. Such exceptional cases include
identity, intent, motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867

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S.W.2d 736, 740 (Tenn. Crim. App. 1992). In making its decision regarding the admissibility of the
testimony, the trial court must first determine if the offered testimony is relevant to prove something
other than the appellant’s character. If the evidence is relevant, then, upon request, the court will
proceed to a Rule 404(b) hearing.

We note that the presentment charging the appellant with conspiracy to sell or deliver
cocaine alleged that the conspiracy occurred between March 30, 1998, and April 30, 1998. Thus,
Long’s testimony regarding any cocaine deals with the appellant during this time period do not
constitute “other” acts of the appellant. Instead, such proof is necessary to establish that a conspiracy
occurred during the time frame alleged in the presentment. As such, the trial court was not required
to perform a Rule 404(b) analysis as to the admission of this testimony regarding the conspiracy
count.

However, Long’s testimony regarding prior cocaine deals with the appellant does
constitute other acts evidence as to the appellant’s possession charge in count two and the sale and
delivery charge in count three. As we stated earlier, the trial court held a jury-out hearing on the
Rule 404(b) issue. At the conclusion of the hearing, the trial court found that the State had
established by clear and convincing evidence that these other acts occurred. The court further
determined that the proffered testimony related to the appellant’s intent; i.e. his knowing possession
of the cocaine located in Thompson’s apartment. Finally, the trial court determined that the
probative value of Long’s testimony was not outweighed by any danger of unfair prejudice.
Furthermore, after Long’s testimony, the trial court gave the jury a limiting instruction restricting the
jury’s consideration of Long’s testimony as to the appellant’s intent in counts two and three,
specifically instructing the jury to not consider the testimony “as to whether or not there’s any
propensity by the defendant to commit the crime.” See State v. Little, 854 S.W.2d 643, 649 (Tenn.
Crim. App. 1992).

We agree with the trial court that the evidence of the previous cocaine transactions
between Long and the appellant were probative to the issue of the appellant’s intent to sell or deliver
the cocaine and to possess the cocaine with the intent to sell or deliver. See id.; State v. Bernard
Jerome Jones, No. M2000-00018-CCA-R3-CD, 2000 WL 1562864, at *3 (Tenn. Crim. App. at
Nashville, Oct. 20, 2000); State v. Johnny Wayne Tillery, No. 01C01-9506-CC-00182, 1998 WL
148326, at *1 (Tenn. Crim. App. at Nashville, Mar. 30, 1998). A leading treatise on Tennessee
evidence has explained:
Intent is ordinarily inferred from evidence of the defendant’s overall
plan to commit such crimes or from proof of defendant’s motive. A
related inference is the inference that a person intended a certain
result if he or she had previously acted in the same way and achieved
the same result. This inference is stronger if the previous acts and
results closely resemble those alleged in the instant case.
Neil P. Cohen et al., Tennessee Law of Evidence, § 4.04[10], at 4-86 (LEXIS publishing, 4th ed.
2000) (footnotes omitted). Additionally, we observe that Long’s testimony regarding the previous
transactions with the appellant establishes the appellant’s opportunity to commit the aforementioned

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crimes. See State v. Paul J. Ward, No. E2001-00175-CCA-R3-CD, 2002 WL 65999, at *4 (Tenn.
Crim. App. at Knoxville, Jan. 18, 2002), perm. to appeal denied, (Tenn. 2002); see also Cohen,
Tennessee Law of Evidence, § 4.04[14], at 4-95. We conclude that the trial court did not abuse its
discretion in admitting Long’s testimony regarding prior cocaine transactions involving the
appellant.

C. Exculpatory Evidence
The appellant argues that “the State entered into an express or implied agreement with
. . . Long regarding any criminal prosecution against her in exchange for her testimony against the
appellant.” As proof of the agreement, the appellant contends that “[i]t is incredible that the pending
felony drug charge [against Long] would remain pending and in limbo for three (3) years without
some agreement between the State and Long regarding her favorable testimony against the
appellant.” The appellant admits that this issue is raised for the first time on appeal, but claims that
this court should not deem the issue waived and instead we should address this issue as plain error.

Upon our review of the record, we conclude that the appellant has waived this issue
by failing to raise it in the trial court. See Tenn. R. App. P. 3(e). Moreover, we observe that the
record does not establish the existence of an agreement between the State and Long. See State v.
Brian S. Roberson, No. 01C01-9708-CC-00334, 1999 WL 77845, at *2 (Tenn. Crim. App. at
Nashville, Feb. 19, 1999). Accordingly, we will not review the appellant’s claim as plain error. See
Tenn. R. Crim. P. 52(b); Tenn. R. Evid. 103(d).

D. Double Jeopardy
The appellant has raised two issues regarding double jeopardy. Both the federal and
state constitutions contain double jeopardy clauses which protect an accused from: (1) a second
prosecution following an acquittal; (2) a second prosecution following conviction; and (3) multiple
punishments for the same offense. See U.S. Const. Amend. V; Tenn. Const. Art. I, § 10; State v.
Denton, 938 S.W.2d 373, 378 (Tenn. 1996). Both of the appellant’s claims relate to the third
category, multiple punishments.

1. Federal
The appellant argues that he “was twice put in jeopardy for the same criminal conduct
arising from his convictions in both the United States District Court and the Sullivan County
Criminal Court.” It is unclear from the appellant’s argument whether his double jeopardy concerns
involve his state convictions for conspiracy, possession, or sale and delivery, or a combination of
these convictions. Nevertheless, this issue is without merit.

Both federal and Tennessee courts have found that the dual sovereignty doctrine
permits convictions in state and federal courts arising from the same criminal conduct without
violating double jeopardy. See generally Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676 (1959);
Lavon v. State, 586 S.W.2d 112, 113-14 (Tenn. 1979). The dual sovereignty doctrine is based upon
the rationale that “the state and federal governments are distinct sovereignties, and thus the
punishment of a single act by each is not double jeopardy.” Lavon, 586 S.W.2d at 113-14. The

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appellant concedes that Tennessee courts currently honor the dual sovereignty doctrine, but asks this
court to now abandon this doctrine.

This court recently faced a similar dilemma in State v. Carpenter, 69 S.W.3d 568
(Tenn. Crim. App. 2001), cert. denied, 535 U.S. 995, 122 S. Ct. 1557 (2002). After recognizing that
the dual sovereignty doctrine has been criticized, this court observed that our cases have nevertheless
consistently upheld the dual sovereignty doctrine. Id. at 577-78. We noted that “‘established
precedent, frequently reaffirmed by this court, and long accepted by the legislature, should not be
departed from lightly.’” Id. at 578 (quoting Lavon, 586 S.W.2d at 114). Accordingly, this court
declined to reverse Carpenter’s convictions on double jeopardy grounds. Id. Likewise, we conclude
that the appellant is entitled to no relief on this issue.

2. State
The appellant also complains that his “convictions for conspiracy to sell cocaine and
the sale and possession with the intent to sell cocaine violated the double jeopardy provisions of the
Fifth Amendment to the United States Constitution and Article I, § 10 of the Tennessee Constitution,
as well as the due process guarantees of Article I, § 8 of the Tennessee Constitution.” The appellant
recognizes that this court has held that “convictions for both the sale of cocaine and the conspiracy
to sell cocaine do not violate double jeopardy.” State v. Thornton, 10 S.W.3d 229, 240 (Tenn. Crim.
App. 1999). Regardless, the appellant asks this court to reverse the appellant’s convictions. The
appellant fails to specify which convictions he believes should be reversed.

In Tennessee, whether two offenses are the “same” for double jeopardy purposes
depends upon a close and careful analysis of the offenses involved, the statutory definitions of the
crimes, the legislative intent and the particular facts and circumstances. See State v. Black, 524
S.W.2d 913, 919 (Tenn. 1975). This analysis is guided in part by the application of the test
announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932), namely
“‘[w]here the same act or transaction constitutes a violation of two distinct statutory provisions, the
test to be applied to determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not.’” Black, 524 S.W.2d at 919 (quoting
Blockburger, 284 U.S. at 304, 52 S. Ct. at 182). However, the Blockburger analysis is not decisive
of the issue. “Courts should also consider whether the same evidence is used to prove both
offenses.” Thornton, 10 S.W.3d at 239. Our supreme court explained the same evidence test by
stating, “‘One test of identity of offenses is whether the same evidence is required to prove them.
If the same evidence is not required, then the fact that both charges relate to, and grow out of, one
transaction, does not make a single offense where two are defined by the statutes.’” Duchac v. State,
505 S.W.2d 237, 239 (Tenn. 1973) (quoting 21 Am. Jur. 2d Criminal Law § 82); see also Denton,
938 S.W.2d at 380.

Accordingly, we must utilize a four-part test in order to determine if double jeopardy
attaches:
(1) a Blockburger analysis of the statutory offenses;
(2) an analysis, guided by the principles of Duchac, of the evidence

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 used to prove the offenses;
(3) a consideration of whether there were multiple victims or discrete
acts; and
(4) a comparison of the purposes of the respective statutes.
Denton, 938 S.W.2d at 381.

As we noted earlier, this court applied such an analysis in Thornton, ultimately
determining that “[b]ecause different elements are required under each statute, the same evidence
was not used to prove both offenses, and the statutes have different legislative purposes, the
convictions for both the sale of cocaine and the conspiracy to sell cocaine do not violate double
jeopardy.” 10 S.W.3d at 240. Likewise, we conclude that the offenses as charged in the instant case
require different elements. For example, as this court has observed, “[a]n agreement is not an
essential element of the offense of selling or delivering drugs. Similarly, the actual sale or delivery
of drugs is not an element of the conspiracy offense.” Id. at 239. Furthermore, an agreement is not
an essential element of the possession of drugs with the intent to sell or deliver, nor is possession an
element of the offense of conspiracy.

Turning to the same evidence test, we conclude that the appellant’s three convictions
were based upon different evidence. The appellant’s conspiracy conviction was based upon the
agreement between himself, Thompson, and Williams to sell or deliver the cocaine. The appellant’s
possession conviction was based upon his possession with the intent to sell or deliver the cocaine
that was discovered in Thompson’s apartment. Finally, the appellant’s conviction for selling or
delivering cocaine stemmed from the transaction with Long involving two ounces of cocaine.

Moreover, “the statutes involved do not have similar legislative purposes.” Thornton,
10 S.W.3d at 239. That is to say, the conspiracy statute was designed to deter agreements that would
violate Tennessee laws. Id. Accordingly, the statute prohibits group criminality. Id. at 240.
Notably, the drug statutes prohibit the sale or delivery of controlled substances, or possession of
controlled substances with the intent to sell or deliver, without consideration of group criminality.
Id. Moreover, the appellant was charged with possessing the cocaine in Thompson’s apartment with
the intent to sell and was charged with selling two ounces of cocaine to Long. In sum, the appellant
was not charged with selling and possessing with the intent to sell the same controlled substance.
Accordingly, the appellant’s three convictions do not violate double jeopardy.

In a related issue, the appellant contends that due process prohibits his convictions
for all three offenses because “in this case proof of the conspiracy was ‘essentially incidental’ to the
underlying felonies of possession and [sale] of cocaine.” The appellant cited State v. Anthony, 817
S.W.2d 299 (Tenn. 1991), in support of this proposition. Regrettably, the State did not address this
issue in its brief.

This court has explained that “[i]n Anthony, our supreme court was concerned about
the fact that proving one felony, the armed robbery, inherently and necessarily proved the elements
of the second felony, kidnaping.” Thornton, 10 S.W.3d at 240. However, we further stated that “the

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proof of the elements of sale of cocaine does not inherently or necessarily prove the elements of
conspiracy.” Id. Specifically, this court has stated that
[t]here will always be a nexus between the conspiracy and the
substantive offense when the latter offense is completed. A
conspiracy, however, would rarely be “essentially incidental” to the
underlying offense, as that term is used in Anthony. . . . Moreover,
the statute prohibiting conspiracies is designed to combat a danger
posed to the public that is different from the danger sought to be
prevented by the drug statutes. The plan and design of two or more
individuals to sell cocaine creates an offense that is worthy of its own
punishment.
Id. at 240-41.

In the instant case, the facts underlying the appellant’s convictions are not “inherently
interwoven” so as to make each offense “essentially incidental” to the other offenses. The appellant
was capable of possessing the cocaine with the intent to sell or deliver without engaging in a
conspiracy with Thompson and Williams. Additionally, the appellant was capable of selling and
delivering two ounces of cocaine to Long without entering into a conspiracy or possessing between
twenty-six grams and 300 grams of cocaine. Moreover, based upon any agreement between
Thompson and Williams, the appellant could have entered into a conspiracy without possessing the
cocaine with the intent to sell or deliver. See Thompson, 10 S.W.3d at 240. Accordingly, we
conclude that the appellant’s three convictions do not violate due process.

E. Sufficiency of the Evidence
The appellant next contends that the evidence is insufficient to sustain his
convictions. In assessing a challenge to the sufficiency of evidence, this court is guided by several
well-established principles. On appeal, a jury conviction removes the presumption of the appellant’s
innocence and replaces it with one of guilt, so that the appellant carries the burden of demonstrating
to this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). The appellant must establish that no “reasonable trier of fact” could have
found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual issues raised by the evidence,
are resolved by the trier of fact, and not the appellate courts. See State v. Pruett,788 S.W.2d 559,
561 (Tenn. 1990).

The appellant was convicted on count one of conspiring with Thompson and Williams
between March 30, 1998, and April 30, 1998, to sell or deliver at least twenty-six grams but less than

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three hundred grams of cocaine. Tennessee Code Annotated section 39-12-103(a) (1997) provides
that the
offense of conspiracy is committed if two (2) or more people, each
having the culpable mental state required for the offense which is the
object of the conspiracy and each acting for the purpose of promoting
or facilitating commission of an offense, agree that one (1) or more
of them will engage in conduct which constitutes such offense.
Additionally, “[t]he commission of an overt act in furtherance of the conspiracy is an essential
element of the offense.” State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App. 1999).

Furthermore, the appellant was convicted on count two of possession of at least
twenty-six grams but less than 300 grams of cocaine with the intent to sell or deliver. Finally, the
appellant was convicted on count three of the sale and delivery of .5 grams or more of cocaine. It
is a crime to knowingly sell or deliver a controlled substance or to knowingly possess a controlled
substance with the intent to sell or deliver. See Tenn. Code Ann. §§ 39-17-417(a)(2),(3), and (4).
“[A] person . . . acts knowingly with respect to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct or that the circumstances exist.”
Tenn. Code Ann. §39-11-302(b) (1997).

Tennessee law provides that possession of a drug can be either actual or constructive.
See State v. Transou, 928 S.W.2d 949, 955 (Tenn. Crim. App. 1996). As this court explained in
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987) (citations omitted):
Before a person can be found to constructively possess a drug, it must
appear that the person has “the power and intention at a given time to
exercise dominion and control over . . . [the drugs] either directly or
through others.” In other words, “constructive possession is the
ability to reduce an object to actual possession.” The mere presence
of a person in an area where drugs are discovered is not, alone,
sufficient to support a finding that the person possessed the drugs.
Likewise, mere association with a person who does in fact control the
drugs or property where the drugs are discovered is insufficient to
support a finding that the person possessed the drugs.

Long testified that she contacted the appellant on three separate occasions between
March 30, 1998, and April 30, 1998, in order to obtain cocaine. On two of these occasions, the
appellant directed Long to go to Thompson’s apartment to obtain the cocaine. The first time Long
went to Thompson’s apartment, she obtained cocaine from either Thompson or Williams. Long
stated that she did not have to ask Thompson or Williams for cocaine because “[t]hey knew what
I was coming for.”

Late in the evening of April 29, 1998, Long telephoned the appellant to obtain two
ounces of cocaine. Robbins witnessed Long dial a specific telephone number in order to reach the
appellant. Robbins also testified that there are twenty-eight grams in an ounce. The appellant again

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directed Long to go to Thompson’s apartment. After enlisting the aid of the 2nd DTF, Robbins took
Long to Sullivan County where they met with Director Bishop. Director Bishop drove Long to
Thompson’s apartment. When Long entered the apartment, either Thompson or Williams gave Long
the cocaine. Both Thompson and Williams were in the apartment at that time. Again, Long did not
have to ask for cocaine prior to Thompson or Williams giving her the cocaine. Neither Thompson
nor Williams asked Long for payment at that time.

Later on April 30, 1998, Long again dialed the telephone number she had previously
used to contact the appellant. She arranged for the appellant to meet her in the Revco parking lot
to obtain payment for the cocaine. Shortly thereafter, the appellant arrived at the parking lot. Long
entered the appellant’s car and, at the appellant’s direction, placed $3,300 in the glove compartment
of his vehicle. The authorities arrested Long and the appellant.

Subsequently, the authorities executed a search warrant on Thompson’s apartment.
Therein, the officers discovered at least 467.8 grams of cocaine and crack cocaine. The contraband
was located in both of the bedroom closets in the apartment. Fifty small bags of the cocaine were
packaged for resale.

We conclude that the evidence adduced at trial was sufficient to establish the
appellant’s guilt of each of the offenses. On April 29, 1998, the appellant directed Long to
Thompson’s apartment to obtain two ounces of cocaine and the next day met with Long and accepted
the prearranged payment of $3,300, constituting a sale and delivery of more than .5 grams of cocaine.

Additionally, the appellant’s actions in directing Long to Thompson’s apartment to
obtain cocaine and Long’s acquisition of the cocaine from Thompson or Williams at the apartment,
clearly establish that the appellant constructively possessed the cocaine in the apartment by
exercising “dominion or control” over the cocaine through Thompson or Williams. Furthermore,
“[i]t 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 (1997). Although the appellant was convicted of possessing between twenty-six and
300 grams of cocaine, the proof at trial revealed that there were over 400 grams of cocaine in
Thompson’s apartment. Robbins opined that anyone buying at least one ounce of cocaine at a time
was purchasing for resale. Furthermore, part of the cocaine found in Thompson’s apartment was
individually packaged for resale. Moreover, Director Bishop asserted that there was no
paraphernalia in Thompson’s apartment indicating that the cocaine was for personal use.
Accordingly, we conclude that there is sufficient evidence in the record supporting the appellant’s
conviction for possession of cocaine with the intent to sell or deliver. See State v. Joseph Leroy
Sullivan, No. 02C01-9803-CC-00071, 1999 WL 134981, at *3 (Tenn. Crim. App. at Jackson, Mar.
15, 1999); Tillery, No. 01C01-9506-CC-00182, 1998 WL 148326, at *1.

Finally, regarding the appellant’s conspiracy conviction, we conclude that there is
ample evidence that the appellant “orchestrated” the sale and delivery of the cocaine to Long. See

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Thornton, 10 S.W.3d at 234. Long went to Thompson’s apartment at the appellant’s direction to
obtain the cocaine and the cocaine was ready for her when she arrived. Our supreme court has noted
that “[w]hile the essence of the offense of conspiracy is an agreement to accomplish a criminal or
unlawful act, the agreement need not be formal or expressed, and it may be proven by circumstantial
evidence.” State v. Pike, 978 S.W.2d 904, 915 (Tenn. 1998) (citations omitted). In the instant case,
the jury could have reasonably inferred the existence of an agreement between the appellant,
Thompson, and Williams to sell and deliver the cocaine. See, e.g., State v. Yasmond Fenderson, No.
03C01-9711-CR-00496, 1999 WL 2840, at *4 (Tenn. Crim. App. at Knoxville, Jan. 6, 1999)
(finding that although the State presented no direct proof of an agreement between conspirators, a
jury may reasonably infer the existence of such an agreement from the conspirators’ acts).

F. Sentencing
Appellate review of the length, range or manner of service of a sentence is de novo.
Tenn. Code Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court considers the
following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
the nature and characteristics of the criminal conduct involved; (5) evidence and information offered
by the parties on enhancement and mitigating factors; (6) any statement by the defendant in his own
behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102 and -103
(1997), -210 (2002 Supp.); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden
is on the appellant to demonstrate the impropriety of his sentences. Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments. In the instant case, because the record does not affirmatively
reflect that the trial court adequately considered sentencing principles and because the trial court did
not specify which enhancement factors were applicable to each offense, this court will examine the
trial court’s determinations without a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at
169.

1. Length of Sentences
The appellant complains that the trial court erred in imposing sentences of twenty
years for each of the appellant’s convictions, the maximum sentence possible for a Range II offender
convicted of a Class B felony. Specifically, the appellant contends that the trial court gave improper
weight to certain enhancement factors and failed to consider an appropriate mitigating factor.

The appellant was convicted of three Class B felonies. See Tenn. Code Ann. § 39-17-
417(c)(1) and (i)(5). To begin a sentencing determination, a court should begin at the presumptive
minimum, then “enhance the sentence within the range as appropriate for the enhancement factors,
and then reduce the sentence as appropriate for the mitigating factors.” Tenn. Code Ann. § 40-35-
210(e). The presumptive sentence for a Class B felony is the minimum sentence within the
appropriate range. See Tenn. Code Ann. § 40-35-210(c). The appellant was sentenced as a standard
Range II offender, and on appeal, does not challenge this designation. Accordingly, the presumptive
sentence for the appellant’s Class B felony convictions was twelve years. See Tenn. Code Ann. §
40-35-112(a)(1)-(3) (1997).

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 The trial court found the existence of the following enhancement factors:
(1) the appellant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the
appropriate range;
(2) the appellant was a leader in the commission of an offense
involving two or more criminal actors;
(8) the appellant has a previous history of unwillingness to comply
with the conditions of a sentence involving release in the community;
and
(13) the felonies were committed while the appellant was on parole
from a prior felony conviction.
See Tenn. Code Ann. § 40-35-114(1), (2), (8), and (13) (1997).4 The trial court gave “great weight”
to enhancement factors (1), (2), and (13), and gave “moderate weight” to enhancement factor (8).

The appellant does not contend that the trial court erred in finding the existence of
enhancement factors (8) or (13). Upon review of the record, we conclude that those enhancement
factors do exist and were correctly applied to all three of the appellant’s convictions. However, the
appellant contends that the trial court erred in giving great weight to enhancement factor (1) and
further erred in finding the presence of enhancement factor (2).

Regarding enhancement factor (1), the appellant argues that the appellant had only
four prior misdemeanor convictions in addition to the felony convictions used to establish his status
as a Range II offender. See Tenn. Code Ann. § 40-35-114(1). The appellant asserts that “while this
factor may have been applicable, it was entitled to little weight since these were misdemeanor and
not felony offense[s], and such a number of misdemeanor convictions should not be construed as a
lengthy criminal history.”

Initially, we note that “ the weight to be afforded an existing factor is left to the trial
court’s discretion so long as the court complies with the purposes and principles of the 1989
Sentencing Act and its findings are adequately supported by the record.” State v. Boggs, 932 S.W.2d
467, 475-476 (Tenn. Crim. App. 1996). Moreover, the proof adduced at the sentencing hearing
revealed that not only did the appellant have four prior criminal convictions in addition to those
convictions used to establish the appellant’s status as a Range II offender, the appellant had
previously admitted to being a “professional drug dealer.”

Specifically, Bill Edwards, who had been the appellant’s probation officer on a prior
occasion, testified that when Edwards compiled a presentence report for the appellant in 1995, the
appellant told Edwards “that the only reason he ever worked was as a cover to – for his drug s[ales];
that he essentially was a professional drug dealer.” Edwards further testified that the appellant

4
As of July 4, 2002, the statutory enhancement factors have been renumbered. See Tenn. Code Ann. § 40-35-
114 (Supp. 2002). However, in the instant case, we will use the numbering of the 1997 version of Tennessee Code
Annotated section 40-35-114.

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 was very open about it that for a four year period that he had started
out in the drug business working as what he called a runner, which
was someone who delivered drugs to the buyer and brought the
money from the buyer back to the dealer, and that he, in fact, had
through self promotion . . . grown into where he was, in fact, the
dealer and had at least two runners at any given time working for him.
Additionally, the presentence report for the instant offenses reflects that the appellant admitted that
he began drinking excessively when he was in high school and that he “began using marijuana at age
15 and that he used marijuana ‘heavily’ for ‘several years’ at the rate of ‘2 or 3 joints a day.’ He
reported that he began using cocaine in 1993 ‘if someone is sharing it.’” We conclude that this
evidence of criminal behavior justifies the application of enhancement factor (1) to all three of the
appellant’s convictions and is entitled to great weight.

Regarding enhancement factor (2) the appellant “first assert[s] that this factor was not
applicable to the conspiracy conviction since it is an essential element of that offense because two
(2) or more criminal actors are necessary for commission of that offense.” See Tenn. Code Ann. §
40-35-114(2). The appellant also argues that the proof does not support the finding that he was a
leader in the commission of the possession and sale offenses.

Initially, we note that the appellant is correct in asserting that a court may not enhance
a sentence if the enhancement factor is an essential element of the offense. See Tenn. Code Ann.
§ 40-35-114. However, being a leader in the commission of an offense involving two or more
criminal actors is not an element of the offense of conspiracy. Conspiracy involves an agreement
between two or more persons to engage in a criminal act; conspiracy does not require that the State
prove leadership in the criminal act. Notably, this court has previously upheld the application of
enhancement factor (2) to conspiracy convictions. See State v. Santiago, 914 S.W.2d 116, 125
(Tenn. Crim. App. 1995); State v. Little, 854 S.W.2d 643, 652 (Tenn. Crim. App. 1992).

Moreover, we note that the proof adduced at trial amply established the appellant’s
role as a leader in each of these offenses. As the trial court observed, “He didn’t allow anybody else
to get the money. . . . [T]he other two people, they weren’t paid the money when the cocaine was
picked up. They merely handed it over. . . . He’s the one that made the arrangements. He’s the one
that got the money.”

“Our cases have established that enhancement for being a leader in the commission
of an offense does not require that the [appellant] be the sole leader but only that he be ‘a’ leader.”
State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App. 1993). We conclude that the trial court
properly applied this enhancement factor to each of the appellant’s convictions and did not err in
assigning this factor great weight. See State v. Holston, 94 S.W.3d 507, 512 (Tenn. Crim. App.
2002); State v. Blackmon, 78 S.W.3d 322, 337 (Tenn. Crim. App. 2001).

The appellant next contends that the trial court should have considered as a mitigating
factor that the appellant assisted federal authorities in prosecution of other criminal defendants. The

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appellant argues that the trial court should have mitigated the sentence based upon mitigating factor
(9) or (13). Tennessee Code Annotated section 40-35-113(9) (1997) states that a sentence may be
mitigated if “[t]he defendant assisted the authorities in uncovering offenses committed by other
persons or in detecting or apprehending other persons who had committed the offenses.” Mitigating
factor (13) states that a trial court may mitigate a sentence based upon “[a]ny other factor consistent
with the purposes of this chapter.” Id. at (13).

At the sentencing hearing, the following colloquy occurred between defense counsel
and Director Bishop:
Defense Counsel: You were active or were involved in the
prosecution in Federal Court as well as this prosecution. Is that
correct?

Director Bishop: Yes, sir.

Defense Counsel: All right, and in the course of, of the federal
prosecution, [the appellant] agreed to provide assistance to you and
to the federal government in regard to prosecution of other people,
didn’t he.

Director Bishop: Yes, sir, to the federal government. Yes, sir.

Defense Counsel: And in fact as a result of that, various other people
were indicted down in Federal Court and wound up pleading guilty
in Federal Court, didn’t they?

Director Bishop: I don’t believe his information [led] to that but he
did provide information about those individuals.
....
Defense Counsel: Okay, and as a result of, and you may not know
this, but as a result of his cooperation, he obtained what was called a
Downward Departure in Federal Court, got less of a sentence?

Director Bishop: I know that to be true, yes.

The trial court refused to apply mitigating factor (9) because the appellant assisted
the federal authorities in prosecuting individuals, but the appellant did not assist state authorities in
the prosecution of state cases. We can find nothing in the language of mitigating factor (9) that so
limits the application of this mitigating factor. However, we conclude that because the appellant did
not help authorities until after his arrests, this enhancement factor is entitled to little weight in its
application to all of the appellant’s convictions. Cf. State v. William Douglas Zukowski, No.
M2001-02184-CCA-R3-CD, 2003 WL 213785, at *19 (Tenn. Crim. App. at Nashville, Jan. 31,

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2003) perm. to appeal denied, (Tenn. 2003). Accordingly, we conclude that the trial court did not
err in sentencing the appellant to the maximum sentence within the range for each offense.

2. Consecutive Sentencing
The appellant complains that the trial court erred by ordering that the sentence on
count three be served consecutively to his sentence for count one. Initially, we note that “[w]hether
sentences are to be served concurrently or consecutively is a matter addressed to the sound discretion
of the trial court.” State v. Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997).

Tennessee Code Annotated section 40-35-115(b) (1997) contains the discretionary
criteria for imposing consecutive sentencing. See also State v. Wilkerson, 905 S.W.2d 933, 936
(Tenn. 1995). The trial court imposed consecutive sentencing because the appellant is a professional
criminal who has knowingly devoted his life to criminal acts as a major source of livelihood and he
is an offender whose record of criminal activity is extensive.

The professional criminal classification derived from Gray v. State, 538 S.W.2d 391,
393 (Tenn. 1976). See Tenn. Code Ann. § 40-35-115, Sentencing Commission Comments. Gray
defined a professional criminal as “one who has knowingly devoted himself to criminal acts as a
major source of livelihood or who has substantial income or resources not shown to be derived from
a source other than criminal activity.” Id. The appellant’s presentence report reflects the appellant’s
last reported job was at Fuddrucker’s Restaurant in Kingsport, which employment ended in 1994.
The report states that “according to previous TDOC records, the defendant has worked at Wendy’s,
Fuddrucker’s, Holiday Inn, Shoney’s, McDonald’s, and Pizza Hut in Kingsport, TN. He stated that
the only reason he ‘ever worked was a cover job for cocaine sales.’ The defendant was not available
for update of this information.” Furthermore, Edwards testified at the sentencing hearing that during
the compilation of the appellant’s 1995 presentence report, the appellant related that over the course
of four years, he went from being a “runner” for drugs into a “dealer” with “runners” working for
the appellant. The discovery of a large amount of cocaine at Thompson’s apartment, some of which
was packaged for resale, indicates that the appellant was a dealer at the time of the instant offenses.
Thus, we determine that the trial court did not err in finding that the State had proven by a
preponderance of the evidence that the appellant was a professional criminal. See State v. Adrian
S. Lennox, No. M2000-02869-CCA-R3-CD, 2001 WL 1077964, at *5 (Tenn. Crim. App. at
Nashville, Sept. 14, 2001).

Additionally, the presentence report reflects that the twenty-nine-year-old appellant
has two prior convictions for the sale of cocaine, a conviction for aggravated assault, two convictions
for marijuana possession, a conviction for driving while his license was suspended, and a conviction
for possession of alcohol by a person under the age of twenty-one. Moreover, the appellant
admittedly has an extensive past in the drug trade. Therefore, we conclude that the trial court did
not err in finding that the appellant has an extensive record of criminal activity. The trial court
permissibly imposed consecutive sentencing.

3. Fines

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 Finally, the appellant contends that the trial court’s imposition of fines totaling
$150,000 is excessive. Both the state and federal constitutions prohibit the imposition of
“excessive” fines. See U.S. Const. Amend. VIII; Tenn. Const. Art. I, § 16; State v. Taylor, 70
S.W.3d 717, 720 (Tenn. 2002). A defendant convicted of the sale of .5 grams or more of cocaine
may be fined not more than $100,000. See Tenn. Code Ann. § 39-17-417(c)(1). Additionally, a
defendant convicted of the possession of more than twenty-six grams but less than 300 grams of
cocaine with the intent to sell or deliver or a defendant convicted of the conspiracy to sell or deliver
the same amount of cocaine may be fined not more than $200,000. Id. at (i)(5). However, our
supreme court has indicated that a fine may be considered excessive even though it does not exceed
the statutory maximum. Taylor, 70 S.W.3d at 721.

In the instant case, the jury imposed a fine of $30,000 for the appellant’s sale
conviction and fines of $60,000 each for the possession and conspiracy convictions for a total
amount of $150,000, well within the maximum fine permissible by statute. The trial court ratified
these fines in sentencing the appellant. Our supreme court has noted that “[t]he trial court’s
imposition of a fine, within the limits set by the jury, is to be based upon the factors provided by the
1989 Sentencing Act, which include ‘the defendant’s ability to pay that fine, and other factors of
judgment involved in setting the total sentence.’” Id. at 723 (quoting State v. Marshall, 870 S.W.2d
532, 542 (Tenn. Crim. App. 1993)). Thus, although the defendant’s ability to pay a fine is a factor,
it is not necessarily a controlling one. Regardless, we recognize that an oppressive fine can disrupt
future rehabilitation and prevent a defendant from becoming a productive member of society. See
Marshall, 870 S.W.2d at 542.

The record reflects that the appellant is indigent and will be incarcerated for forty
years. Therefore, “a large punitive fine does not appear necessary to achieve the appropriate overall
sentence.” Taylor, 70 S.W.3d at 723. Accordingly, we conclude that the fines imposed are
excessive. We reduce the amount of the appellant’s fines to $10,000 for the sale conviction and
$20,000 each for his remaining two convictions.

III. Conclusion
Based upon the foregoing, we affirm the judgments of the trial court, but remand for
a reduction of the appellant’s fines as directed in this opinion.

___________________________________
NORMA McGEE OGLE, JUDGE

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