State v. Thomas E. Davenport and John Simmons

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 2000 Session

STATE OF TENNESSEE v. THOMAS E. DAVENPORT and
JOHN SIMMONS

Appeal from the Criminal Court for Williamson County
No. II-299-53-A and B Timothy L. Easter, Judge

No. M2000-00317-CCA-R3-CD - Filed November 17, 2000

Both defendants were convicted by a Williamson County jury of selling more than 0.5 grams of
cocaine, a Class B felony. Both defendants were sentenced as Range II, multiple offenders.
Defendant Simmons received a sixteen-year sentence, and defendant Davenport received a fifteen-
year sentence. In this direct appeal, both defendants challenge (1) the sufficiency of the evidence,
and (2) the length and manner of service of their sentences. Simmons further raises the following
issues: (1) whether he was denied a speedy trial; (2) whether the trial court erred in denying his
motion to dismiss due to the absence of proper signatures on the indictment; and (3) whether the trial
court erred in failing to require the state to elect an offense upon which to proceed. Additionally,
Davenport makes the following allegations: (1) the trial court erred in allowing portions of the audio
taped drug transaction to be presented to the jury; (2) the trial court erred in ruling his prior
convictions were admissible under Tenn. R. Evid. 609; and (3) the trial court erred in denying his
motion for a mistrial when the informant referred to Davenport’s offering her a crack pipe. Based
upon a review of the record, we affirm the judgment of the trial court as it relates to defendant
Simmons; however, we reverse defendant Davenport’s conviction for the sale of cocaine and reduce
it to simple possession of cocaine. We remand to the trial court to re-sentence defendant Davenport.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
Reversed in Part; Affirmed in Part; Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which JERRY L. SMITH, J., and L. TERRY
LAFFERTY, Sr. J., joined.

Mark L. Puryear, III, Franklin, Tennessee, for the appellant, Thomas E. Davenport.

Virginia Lee Story, Franklin, Tennessee, for the appellant, John Simmons.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Sharon E. Tyler, Assistant District Attorney
General, for the appellee, State of Tennessee.

OPINION

Defendants, Thomas E. Davenport and John Simmons, were convicted by a Williamson
County jury of selling cocaine over 0.5 grams and sentenced to fifteen years and sixteen years,
respectively. Both have appealed to this court challenging their convictions and sentences. We
conclude the evidence was insufficient to support defendant Davenport’s conviction for selling
cocaine, reduce the conviction to simple possession of cocaine, and remand for re-sentencing. We
affirm the judgment in all respects as to defendant Simmons.

FACTS

On August 27, 1998, officers from Williamson County used an informant from Rutherford
County who made a controlled buy of 0.7 grams of cocaine at the home of defendant Davenport.
At trial, the informant testified that she was incarcerated in the Rutherford County jail when officers
approached her about becoming an informant. She testified that on the day in question she was
driven by a Rutherford County officer in an unmarked vehicle to the house of defendant Davenport,
which was located in Williamson County. Officers testified that she was wired with an electronic
listening device, given five $20 bills and told to purchase $100 worth of cocaine.

The informant testified that she entered the house, and both defendant Davenport and
defendant Simmons were present along with Davenport’s girlfriend and another female. Simmons
asked her what she wanted, and she said "a hundred."1 Simmons stated that he did not have that
much, but he could get it. She testified that she gave Simmons the money, and Simmons left the
house. Officer Prestinini, who drove the informant to the scene, testified that he saw a man fitting
the description of Simmons leave the residence shortly after the informant entered. Simmons
returned approximately twenty minutes later. The informant testified that Simmons went to the
kitchen table and broke off five rocks of cocaine and gave them to her. Davenport remained seated
on the couch in another room but was able to see the kitchen table. She testified that she gave
Davenport one of the rocks "because it was his house," and then left the scene with Officer
Prestinini.

1
When the informant was initially questioned as to who asked her what she wanted, she stated, “I think it was
[Davenp ort].” Howev er, after listening to the audio tap e, she stated it was Simm ons.

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 In addition to the informant’s testimony, the state played portions of the audio taped
recording of the alleged sale. Officers from both Rutherford and Williamson County testified that
they did not offer the informant a "deal" or make her any promises with regard to her pending
charges.

Neither defendant testified, nor did either offer any witnesses in defense.

The jury found both defendants guilty of the sale of more than 0.5 grams of cocaine. The
trial court found both defendants were Range II, multiple offenders. Simmons received a sixteen-
year sentence and Davenport a fifteen-year sentence. This appeal followed.

I. SPEEDY TRIAL- SIMMONS

Simmons argues that he was denied a speedy trial. He contends he was continuously
incarcerated since September 28, 1998, and filed a request for speedy trial on December 14, 1998.
However, his trial did not begin until August 24, 1999.

A. Speedy Trial Factors

Without question, criminal defendants are constitutionally and statutorily entitled to a speedy
trial. U.S. Const. Amend. VI; Tenn. Const. Art. I, § 9; Tenn. Code Ann. § 40-14-101. There is no
set time limit within which the trial must commence; rather, consideration must be given to the
circumstances of each case. The Tennessee Supreme Court has adopted the balancing test set forth
in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as the method for
determining whether a defendant's right to a speedy trial has been violated. State v. Wood, 924
S.W.2d 342, 346 (Tenn. 1996); State v. Baker, 614 S.W.2d 352, 353 (Tenn. 1981). If, after
conducting this balancing test, it is concluded that the defendant was in fact denied a speedy trial,
constitutional principles require that the conviction be reversed and the criminal charges dismissed.
State v. Bishop, 493 S.W.2d 81, 83 (Tenn. 1973).

In conducting this balancing test, we are required to examine the conduct of both the
prosecution and the appellant, focusing primarily on (1) the length of the delay, (2) the reason for
the delay, (3) whether the appellant asserted his right to a speedy trial and (4) whether the appellant
was prejudiced by the delay. Wood, 924 S.W. 2d at 346; Bishop, 493 S.W.2d at 84; State v.
Jefferson, 938 S.W.2d 1, 12-13 (Tenn. Crim. App. 1996). The most important factor is whether the
defendant was prejudiced by the delay. State v. Vance, 888 S.W.2d 776, 778 (Tenn. Crim. App.
1994). The most important inquiry with regard to prejudice is whether the delay impaired the
defendant's ability to prepare a defense. Id. A delay of as long as two years standing alone will not
support a finding of a speedy trial violation. Id. (citing Bishop, 493 S.W.2d at 84).

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 B. Analysis

We first note that the defendant did not file a motion to dismiss prior to trial as required by
Tenn. R. Crim. P. 12(b) and, therefore, waives this issue under Tenn. R. Crim. P. 12(f). See State
v. James W. Aldridge, C.C.A. No. 6, Fayette County (Tenn. Crim. App. filed Oct. 10, 1990, at
Jackson), perm. to app. denied (Tenn. December 10, 1990). The filing of a demand for speedy trial
does not satisfy this requirement. Id. at *3. The only pleading addressing this issue after the
December 14, 1998, request for speedy trial was the motion for new trial. There was no evidence
presented at the hearing in support of the claim. The record is insufficient to allow for adequate
appellate review; thus, the issue is waived. Tenn. R. App. P. 36(a); State v. Jackie W. Kestner, No.
03C01-9611-CR-00390, Washington County (Tenn. Crim. App. filed June 30, 1998, at Knoxville),
perm. to app. denied (Tenn. February 1, 1999).

Regardless, the record does not reflect a speedy trial violation. The offense was committed
on August 27, 1998. The original indictment was obtained in October 1998, which was later
dismissed and replaced by a superseding indictment in February 1999. A request for speedy trial
was filed on December 14, 1998. In March and May of 1999, the defendant agreed to trial
continuances. Thereafter, the trial in this matter was set for August 24, 1999, and the case proceeded
to trial on that date.

Two continuances were agreed upon by the defendant, and the length of the delay was not
prejudicial. We conclude that Simmons was not denied a speedy trial.

II. VALIDITY OF THE CHARGING INSTRUMENT- SIMMONS

Simmons contends counts one and two of the charging instrument are invalid because they
are not signed on the back by the grand jury members or the grand jury foreperson. He
acknowledges that the third count is signed on the back by all twelve jurors and includes the
signature of the grand jury foreperson. However, he claims that since only defendant Davenport is
charged in count three, the endorsements on that count are not sufficient to indict him on counts one
and two.

At the hearing on this motion, the trial judge determined that counts one, two and three
comprised one document, and count three sufficiently integrated counts one and two by specifically
noting a “true bill” on “counts 1, 2 and 3.” Thus, he concluded the signatures were adequate to
sustain the indictment as to all counts. We agree. See State v. Lawrence Shelton, C.C.A. No.
03C01-9505-CR-00138, Greene County (Tenn. Crim. App. filed March 13, 1996, at Knoxville),
perm. to app. denied (Tenn. 1996). The indictment was sufficient to charge Simmons with the sale
and delivery of more than 0.5 grams of cocaine.

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 III. ELECTION OF OFFENSES- SIMMONS

Simmons filed a motion requesting that the trial court require the state to elect one count of
the indictment upon which to proceed. In count one Simmons was charged with the sale of cocaine
over 0.5 grams, and in count two he was charged with the delivery of cocaine over 0.5 grams. The
trial court concluded an election was not required. Simmons contends that the state’s failure to elect
deprived him of a unanimous jury verdict.

The doctrine of election requires the state to elect a set of facts when it has charged a
defendant with one offense, but there is evidence of multiple offenses. State v. Brown, 992 S.W.2d
389, 391 (Tenn. 1999). This doctrine is applied to ensure that the defendant can prepare for the
specific charge, to protect the defendant from double jeopardy, and to ensure that some jurors do not
convict on one offense and other jurors on another. State v. Shelton, 851 S.W.2d 134, 137 (Tenn.
1993). Issues of jury unanimity usually arise where the state presents evidence showing more than
one criminal offense, but the underlying charging instrument lacks specificity as to the offense for
which the accused is being tried. State v. Brown, 762 S.W.2d 135, 136-37 (Tenn. 1988).

However, there was no risk in this case that different jurors could have based their individual
determinations on different sets of facts; thus, those cases requiring an election have no application
to the case at bar. When the evidence does not establish that multiple offenses were committed, the
need for election never arises. State v. Adams, ___ S.W.3d ___, ___ (Tenn. 2000). The jury was
not required to make findings from among several possible criminal acts to determine whether
Simmons was guilty of the sale or delivery of cocaine. An election is not required where the jury
chooses which offense was committed based upon a single set of facts. State v. Lemacks, 996
S.W.2d 166, 170-71 (Tenn.1999). Thus, we conclude the trial court did not err in failing to require
the state to make an election as to Count 1 or 2.

IV. SUFFICIENCY OF THE EVIDENCE- SIMMONS and DAVENPORT

Both defendants challenge the sufficiency of the convicting evidence. Furthermore,
Davenport argues that the state failed to demonstrate that he was criminally responsible for the
actions of Simmons. He contends no evidence was presented to show that he either aided, attempted
to aid, directed or solicited the conduct of Simmons, or that he intended to benefit in the proceeds
or results of the offense.

A. Standard of Review

In Tennessee, great weight is given to the result reached by the jury in a criminal trial. A jury
verdict accredits the state's witnesses and resolves all conflicts in favor of the state. State v. Bigbee,
885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the state is entitled to the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn therefrom. Id.; State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a guilty verdict removes the presumption of

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innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.

Where sufficiency of the evidence is challenged, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the trier of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

B. Simmons

We conclude the evidence was sufficient to find Simmons sold more than 0.5 grams of
cocaine. The credibility of the informant and the weight to attach to her testimony were issues for
the jury. See Sheffield, 676 S.W.2d at 547; Brewer, 932 S.W.2d at 19. The jury obviously believed
the informant’s testimony that she purchased $100 worth of crack cocaine from Simmons.

In addition to her testimony, the jury heard the alleged transaction on audio tape. The
informant said she wanted “a hundred.” Simmons stated that it would take him ten minutes to get
it, and the informant paid Simmons $100. Officer Prestinini, who was waiting in the truck outside
the house, testified that a man matching the description of Simmons exited the residence. Some time
later Simmons returned. The informant testified that Simmons cut the cocaine into several rocks and
gave them to her. Officer Prestinini testified that he received the cocaine from the informant after
she exited the residence. Further testimony from state witnesses revealed the substance was indeed
cocaine in the amount of 0.7 grams.

Thus, we find the jury heard sufficient evidence to conclude Simmons was guilty of the sale
of 0.5 grams or more of cocaine.

C. Davenport

Viewing the evidence in a light most favorable to the state, we conclude there was
insufficient evidence to support Davenport’s conviction for the sale of cocaine. There was no
evidence that Davenport actually sold the informant cocaine, and the state failed to prove Davenport
was criminally responsible for the actions of Simmons.

A person is criminally responsible for the conduct of another if “[a]cting with intent to
promote or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids or attempts to aid another person to commit the offense.”
Tenn. Code Ann. § 39-11-402(2).

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 We conclude there is nothing in the informant’s testimony and nothing on the tape which
reveals Davenport intended to promote or assist in the sale of the cocaine.2 Although the tape
contains all conversations between the informant and Davenport during the approximately twenty-
minute time period while Simmons was gone, there is nothing in those conversations indicating any
intent by Davenport to assist in the offense or benefit from the sale by Simmons. It was Simmons
who made the initial deal, accepted payment, acquired the cocaine, and completed the transaction.

The state argues that Davenport was present and supplied the forum for the transaction.
However, mere presence of a person in an area where drugs are discovered is not, alone, sufficient
to establish criminal liability. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987).
Likewise, mere association with those in possession of drugs is insufficient to establish criminal
liability. State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App.1996). Nor is this a situation in
which an inference of unlawful possession may be created where the defendant is the owner of the
premises. See State v. Ash, 729 S.W.2d 275, 280 (Tenn. Crim. App. 1986). Here, the state’s proof
showed the cocaine was brought on the premises by Simmons and given by Simmons directly to the
informant.

The state further argues Davenport allowed the use of his house because he knew he would
benefit from the transaction. We are unable to make this assumption. Although Davenport may
have intended to benefit from the transaction, a criminal conviction cannot be based upon conjecture,
speculation or a mere possibility. State v. Sheppard, 862 S.W.2d 557, 565 (Tenn. Crim. App. 1992).
There is no indication that there was an agreement between Davenport, Simmons and the informant
that Davenport would receive a portion of the cocaine because he was the owner of the house, and
no evidence that he intended to or did share in the cash from the sale. The mere fact that the
informant gratuitously gave Davenport a rock after the sale by Simmons, “because it was his house,”
does not show that Davenport intended to benefit at the time of the sale.

In summary, viewing the evidence in a light most favorable to the state, the state’s proof
shows: (1) Simmons asked the informant what she wanted when the informant entered the residence;
(2) Davenport was present in his residence when the informant requested cocaine; (3) Davenport was
aware that Simmons received money for the cocaine; (4) Davenport knew Simmons left intending
to return with cocaine; (5) Davenport observed Simmons giving the cocaine to the informant in
Davenport’s residence; and (6) the informant, without any request from Davenport, gave him a rock
of cocaine “because it was his house.” The evidence is insufficient to establish that Davenport acted
with the intent to promote or assist in the commission of the offense or to benefit in the proceeds,
and is insufficient to establish that he solicited, directed, aided, or attempted to aid Simmons sell

2
W e note that the audio tape of the transaction, which was made an exhibit to the informant’s testimony,
included a conversation between Officer Prestinini and the informant immediately after the alleged buy, in which the
informant indicated that Davenport sold twenty dollars worth of cocaine to another person in the house while the
informant was waiting for Simmons to return. However, this portion of the tape was not played for the jury. Although
she made reference to this alleged sale in her testimony, she was unclear as to whether Simmons was gone at the time
and unclear as to whether Simmons or Davenport made the sale. Thus, based on her testimony, one could not conclude
that Dav enport m ade the sale .

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cocaine. See Tenn. Code Ann. § 39-11-402(2). Thus, Davenport’s conviction for selling cocaine
is reversed.

The jury was also instructed on the lesser included offense of simple possession. The
informant testified that she gave Davenport a rock. The jury obviously concluded that Davenport
accepted the cocaine from the informant as she left the residence. Thus, we find the evidence is
sufficient to sustain a conviction against Davenport for the lesser offense of simple possession of
cocaine. We, therefore, reduce his conviction to simple possession of cocaine and remand to the trial
court for re-sentencing and entry of the appropriate judgment.

V. DAVENPORT’S REMAINING ALLEGATIONS

The issue of sentencing with regard to defendant Davenport is moot in light of our holding
as to sufficiency of the evidence. The trial court upon remand will re-sentence Davenport for the
lesser offense of simple possession, a Class A misdemeanor. However, we will briefly address
defendant Davenport’s remaining allegations of error.

A. Audio Tape

Davenport alleges the trial court erred in refusing to grant his pre-trial motion to exclude the
audio taped recording of the transaction. He claims a large portion of the tape was irrelevant and
certain portions were highly prejudicial. Specifically, he asserts portions of the tape refer to alleged
prior illegal activity.

We agree with the trial court’s holding that the portions of the tape to which Davenport
objected did not include any mention of prior illegal activity. The conversations between Davenport
and the informant involved stories about people with whom both were familiar. The tape does not
reveal any personal information about Davenport’s prior drug use or sale of drugs. Thus, we
conclude the trial court did not abuse its discretion in allowing the jury to hear the tape.

B. Prior Felony Convictions

Davenport alleges the trial court erred in declaring his prior drug-related felonies to be
admissible if he testified. He argues the use of these convictions would be highly prejudicial and
should be excluded under Tenn. R. Evid. 609.

The state filed an appropriate notice of intent to impeach Davenport with his prior
convictions for possession of marijuana with intent to sell, possession of a weapon with intent to
employ in the sale of marijuana, sale of marijuana, conspiracy to sell marijuana and sale of cocaine.
The court determined that all of the convictions would be admissible except conspiracy to sell
marijuana, which was a misdemeanor conviction.

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 This court has reached different conclusions as to whether prior drug convictions are
suggestive of dishonesty. See State v. Brian Roberson, No. 01C01-9801-CC-00043, Williamson
County (Tenn. Crim. App. filed December, 21, 1998, at Nashville), perm. to app. denied (Tenn. May
13, 1999) (the act of drug dealing is suggestive of dishonesty); State v. Jeffrey Walker, No. 01C01-
9705-CC-00200, Maury County (Tenn. Crim. App. filed October 22, 1999, at Nashville) (selling
drugs does not involve “dishonesty or false statement”). Regardless, we conclude that, because there
was no offer of proof made at the hearing on this issue, Davenport has failed to demonstrate he was
prejudiced by the trial court’s decision. The Supreme Court in State v. Galmore noted that a
defendant is not required to make an offer of proof nor testify at trial in order to preserve this issue
for appeal; however, the court also noted that “[d]epending upon the facts and circumstances of a
case, an offer of proof may be the only way to demonstrate prejudice.” 994 S.W.2d 120, 125 (Tenn.
1999); see also State v. Taylor, 993 S.W.2d 33, 35 (Tenn. 1999). Davenport has not specified and
we are unable to determine the nature of his proposed testimony. Therefore, under the facts and
circumstances of this case, we hold that Davenport has failed to demonstrate prejudice.

C. Mistrial

Davenport contends he should have been granted a mistrial because the informant was
allowed to testify that Davenport offered her a crack pipe while they were waiting for Simmons to
return. He further argues that the instruction of the trial court was insufficient to correct the prejudice
caused by the improper testimony.

During the testimony of the informant, the state played the audio tape of the alleged drug
transaction. At one point the prosecuting attorney stopped the tape and asked the informant what
was being said. The informant then testified that Davenport offered her a crack pipe, and she
refused. At this point, defense counsel objected and requested a mistrial. The tape was replayed for
the court with the jury out and revealed the following exchange:

Davenport: “do you want it?”
Informant: “no, I have to pick up my niece.”

The judge then instructed the district attorney to refrain from admitting evidence regarding the crack
pipe as that charge had been severed and was not relevant to the current charges before the court.
He further admonished the jury that they were to disregard any mention of a crack pipe.

We find that the trial court did not err in denying Davenport’s motion for a mistrial. The trial
court instructed the jury to disregard comments regarding the crack pipe. Davenport is not entitled
to relief on this issue.

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 VI. SENTENCING- SIMMONS

Simmons challenges the length and manner of service of his sentence. He contends his
sentence is excessive. He further argues that he should be placed on community corrections.

A. Standard of Review

This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of correctness and our
review is de novo. State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997). The burden is upon the
appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d) Sentencing
Commission Comments.

If no mitigating or enhancement factors for sentencing are present, Tenn. Code Ann. § 40-35-
210(c) provides that the presumptive sentence for most offenses shall be the minimum sentence
within the applicable range. State v. Lavender, 967 S.W.2d 803, 806 (Tenn. 1998); State v. Fletcher,
805 S.W.2d 785, 788 (Tenn. Crim. App. 1991). However, if such factors do exist, a trial court
should start at the minimum sentence, enhance the minimum sentence within the range for
enhancement factors and then reduce the sentence within the range for the mitigating factors. Tenn.
Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the statute, as the
weight given to each factor is left to the discretion of the trial court as long as the trial court complies
with the purposes and principles of the sentencing act and its findings are supported by the record.
State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848 (Tenn. Crim.
App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments. Nevertheless,
should there be no mitigating factors, but enhancement factors are present, a trial court may set the
sentence above the minimum within the range. Tenn. Code Ann. § 40-35-210(d); Lavender, 967
S.W.2d at 806; Manning v. State, 883 S.W.2d 635, 638 (Tenn. Crim. App. 1994).

B. Length of Sentence

The court properly found Simmons was a Range II, multiple offender based on his four prior
felony convictions for selling cocaine. In addition, the trial court found Simmons had a previous
history of criminal convictions or behavior in addition to those necessary to establish the appropriate
range; had a previous history of unwillingness to comply with the conditions of a sentence involving
release into the community; and the current offense was committed while on parole from a prior
felony conviction. Tenn. Code Ann. 40-35-114(1), (8), (13). The court did not find any mitigating
factors.
Simmons does not challenge the applicability of the enhancement factors, and we do not find
any error in their application. Likewise, he does not list any mitigating factors which he believes
should have been applied by the trial court. As a Range II, multiple offender Simmons was subject

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to a sentence of 12 to 20 years. See Tenn. Code Ann. § 40-35-112(b)(2). We conclude the trial court
did not err by sentencing him to sixteen years, a mid-range sentence.

C. Manner of Service

Simmons argues he had a strong potential for rehabilitation; therefore, he should have been
placed on community corrections. The Community Corrections Act establishes a program of
community-based alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann.
§ 40-36-103. The Act does not provide that all offenders who meet these requirements are entitled
to such relief. State v. Grandberry, 803 S.W.2d 706, 707 (Tenn. Crim. App. 1990). Indeed, Tenn.
Code Ann. § 40-36-106(d) provides that the eligibility criteria shall be interpreted as minimum
standards to guide the court's determination of eligibility of offenders under the Act.

In determining if incarceration is appropriate, a trial court may consider the need to protect
society by restraining a defendant having a long history of criminal conduct, the need to avoid
depreciating the seriousness of the offense, whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses, and whether less restrictive measures have
often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1);
see also Ashby, 823 S.W2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim. App. 1997).

The defendant had four prior convictions for the sale of cocaine, and convictions for
possession of cocaine, possession of a prohibited weapon and simple assault. The trial court found
that less restrictive measures than incarceration had previously been unsuccessfully applied to
Simmons, and the current offense was committed while he was on parole for a prior felony.
Therefore, the trial court held Simmons was not an appropriate candidate for community corrections.
We conclude the trial court did not err in denying community corrections.

CONCLUSION

We conclude the evidence was insufficient to support Davenport’s conviction for the sale of
cocaine. However, we find the evidence was sufficient to sustain a conviction for the lesser included
offense of simple possession and remand to the trial court for re-sentencing and entry of the
appropriate judgment. We conclude the evidence was sufficient to support Simmons’ conviction
for the sale of more than 0.5 grams of cocaine. Furthermore, we find all other issues raised by
Simmons to be without merit; therefore, we affirm his conviction and sentence.

___________________________________
JOE G. RILEY, JUDGE

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