IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 18, 1999
JUNE 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, * C.C.A. # 03C01-9805-CR-00178
Appellee, * Greene County
VS. * Honorable James E. Beckner, Judge
KENYETTA FIELDS, * (Facilitation of a Felony)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
GREG W. EICHELMAN (on appeal) PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
1609 College Park Drive, Box 11
Morristown, TN 37813-1618 CLINTON J. MORGAN
Assistant Attorney General
FREDICK M. LANCE (at trial) 425 Fifth Avenue North
804 Market Street Nashville, TN 37243-0493
Johnson City, TN 37604
C. BERKELEY BELL, JR.
District Attorney General
VICTOR VAUGHN
Assistant District Attorney General
109 South Main Street
Greeneville, TN 37743
OPINION FILED: _______________
AFFIRMED IN PART, MODIFIED, AND REMANDED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Kenyetta Fields, appeals his conviction and sentence for
facilitation of the sale of cocaine in an amount greater than .5 grams. The
defendant argues that (1) the evidence at trial was insufficient to support the
jury's verdict, (2) the sentence imposed by the trial court is excessive, and (3) the
trial court erred in failing to grant an alternative sentence. We AFFIRM the
defendant’s conviction and MODIFY the sentence imposed by the trial court.
BACKGROUND
The defendant was arrested pursuant to an undercover operation in which
TBI Agent Mike Hannon purchased 1.5 grams of cocaine from a passenger of a
vehicle operated by the defendant. At the outset of the offense, the defendant
and his passenger were seated in the defendant’s 1 parked vehicle. Hannon and
an informant parked behind them to attempt to purchase cocaine. The
defendant’s passenger, James Henry Davis, got out of the defendant’s vehicle,
approached Hannon, and asked what they wanted. Hannon responded that he
wanted $250 worth of crack cocaine. Davis then went back to the defendant’s
car and got in the front passenger seat. Hannon testified that he observed what
he thought was an exchange between Davis and the defendant. Although he did
not see anything change hands, Hannon testified that the defendant and Davis
engaged in conversation and physical interaction. A few moments later, Davis
got out of the defendant’s car, returned to Hannon, and delivered a substance
that was later identified as 1.5 grams of crack cocaine. Hannon paid Davis $260,
and Davis took the money back to the defendant’s car. Davis and the defendant
then engaged in a second transaction, after which Davis returned to Hannon with
1
Although the vehicle was reg istered to “S . Fields” rath er than to th e defen dant,
the defendant possessed and was in control of the vehicle during the present offense, and law
enfo rcem ent o ffice rs tes tified th at the y kne w the defe nda nt an d had seen him drivin g the vehic le
in the past. Thus, while we refer to the vehicle as the “defendant’s,” we recognize that he may not
have tec hnically own ed the ve hicle.
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ten dollars change. The state presented testimony that the sale occurred within
approximately 200 yards of a school.
Both subjects were subsequently arrested and indicted for the sale of
cocaine in an amount greater than .5 grams. See Tenn. Code Ann. § 39-17-417.
The defendant was tried separately before a jury. At the close of the state’s
proof, the defense moved for a judgment of acquittal. Finding that the evidence
was sufficient to support the indictment, the trial court overruled this motion.
However, the court did find it appropriate to also charge the jury on the lesser
offense of facilitation. See Tenn. Code Ann. § 39-11-403. The jury found the
defendant not guilty on the indicted charge but found him guilty of facilitation and
imposed a fine of $50,000. The trial court then sentenced him to four years and
six months in the Tennessee Department of Correction.
ANALYSIS
The defendant first submits that the evidence presented at trial was legally
insufficient to support the jury’s verdict. When a defendant challenges the
sufficiency of the evidence, this Court must determine whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of a crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d
63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). The appellee is entitled to the
strongest legitimate view of the evidence and all reasonable inferences that may
be drawn therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
The credibility of witnesses, the weight of their testimony, and the
reconciliation of conflicts in the evidence are matters entrusted exclusively to the
trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.
Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state
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accredits the testimony of the state’s witnesses and resolves all conflicts in favor
of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).
Moreover, a guilty verdict removes the presumption of innocence enjoyed by
defendants at trial and replaces it with a presumption of guilt. See State v.
Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, an appellant challenging the
sufficiency of the evidence carries the burden of illustrating to this Court why the
evidence is insufficient to support the verdict. See State v. Freeman, 943
S.W.2d 25, 29 (Tenn. Crim. App. 1996).
Section 39-11-403 of Tennessee Code Annotated provides, “A person is
criminally responsible for the facilitation of a felony if, knowing that another
intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the person knowingly furnishes substantial
assistance in the commission of the felony.” Although more might be inferred, it
is clear that the defendant provided the car that he and Davis used both as
transportation to and from the drug sale and as an office of sort from which to
conduct the transaction. This evidence, along with Hannon’s account of the
interaction between Davis and the defendant at each stage of the sale, was
sufficient for a reasonable trier of fact to infer that the defendant knew of Davis’
intent. The evidence also supports the jury’s conclusion that the defendant
knowingly furnished substantial assistance to Davis in the commission of the
sale. Thus, we find the evidence sufficient to support the jury’s verdict.
SENTENCING
The defendant next argues that his sentence is excessive and that the
trial court erred in failing to impose an alternative sentence. When an accused
challenges the length or manner of service of a sentence, it is the duty of this
Court to conduct a de novo review on the record “with a presumption that the
determinations made by the court from which the appeal is taken are correct.”
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Tenn. Code Ann. § 40-35-401(d). This presumption “is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). The appellant carries the burden of showing that his
sentence is improper. See Tenn. Code Ann. § 40-35-401(d) sentencing comm’n
cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).
Length of Sentence
The defendant is a Range I offender, and facilitation of the sale of cocaine
in an amount greater than .5 grams is a Class C felony. See Tenn. Code Ann.
§§ 39-11-403(b); 39-17-417(c)(1). Thus, the defendant is subject to a
sentencing range of three to six years. See Tenn. Code Ann. § 40-35-112. The
presumptive sentence for a Class C felony is the minimum in the range, absent
enhancement or mitigating factors. See Tenn. Code Ann. § 40-35-210(c).
The trial court found applicable as enhancement factors that the
defendant has a history of criminal behavior in addition to that necessary to
establish the appropriate range, see Tenn. Code Ann. § 40-35-114(1), and that
the offense occurred within 200 yards of a school, see generally Tenn. Code
Ann. § 39-17-432 (establishing the area within 1000 feet of school property as a
Drug-Free School Zone and providing enhanced penalties for certain offenses
committed within such area). Based on these findings, and finding no mitigating
factors, the court imposed a sentence of four and one-half years.
The defendant challenges both enhancements applied by the trial court as
well as the trial court’s rejection of two proposed mitigating factors: that “[t]he
defendant's criminal conduct neither caused nor threatened serious bodily injury”
and “[t]he defendant played a minor role in the commission of the offense.”
Tenn. Code Ann. § 40-35-113(1), (4).
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As to enhancement factor (1), the defendant’s presentence report reflects
numerous misdemeanor convictions and his admission that he uses cocaine.
The defendant does not contest the nature or extent of this criminal history.
However, he argues that because all of his prior convictions were
misdemeanors, factor (1) is inapplicable. This argument is without merit. The
language of the enhancement statute does not limit a sentencing court to the
consideration of felony convictions--or even convictions. See Tenn. Code Ann. §
40-35-114(1). Enhancement factor (1) may be applied solely on the basis of
misdemeanor criminal history. See State v. Millbrooks, 819 S.W.2d 441, 446-47
(Tenn. Crim. App. 1991). Thus, the trial court’s application of enhancement
factor (1) was proper.
The defendant next argues that the trial court erred in enhancing his
sentence based on its finding that the offense occurred within 200 yards of a
school. We agree. The Drug-Free School Zone Act (“the Act”) establishes the
area within 1000 feet of a school property as a Drug-Free School Zone and
provides for enhanced punishment--through increased offense classification and
minimum sentencing--for certain offenses committed within such an area. See
Tenn. Code Ann. § 39-17-432. Although the state’s proof was uncontested that
the defendant committed his offense within 200 yards of a school, the state did
not indict the defendant under the Act. Instead, the state cited violation of the
Act in its notice to seek enhanced punishment. At the defendant’s sentencing
hearing, the trial court correctly concluded that, because the state had not
properly indicted the case, the court could not invoke the Act to increase the
defendant’s offense classification.2 Nevertheless, the trial court found that the
defendant’s violation of the Act warranted “some consideration” and relied upon
it to enhance the defendant’s sentence. Because “[t]he factors contained in §§
2
We note that applying the Act would have been problematic in any event because as
the defendant was not convicted, as required by the Act, of “a violation of § 39-17-417 or
conspiracy to violate such section.” Rather, he was convicted of facilitation of a violation of 39-17-
417.
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40-35-113 and -114 are the exclusive factors which may be considered in setting
the length of a sentence within a given range,” State v. Dykes, 803 S.W.2d 250,
258 (Tenn. Crim. App. 1990), we cannot affirm this enhancement.
The defendant next argues that the trial court erred in rejecting his
assertions that he neither caused nor threatened serious bodily injury and that he
played only a minor role in the commission of the offense. See Tenn. Code Ann.
§ 40-35-113(1), (4). We find neither factor applicable.
The threat of serious bodily injury is inherent in cocaine use. Thus, this
Court has held that mitigating factor (1) should not be applied when the
defendant is convicted of an offense involving cocaine. See State v. Vanderford,
980 S.W.2d 390, 407 (Tenn. Crim. App. 1997); State v. Keel, 882 S.W.2d 410,
422 (Tenn. Crim. App. 1994).
Factor (4) is also inapplicable. As noted above, the evidence is sufficient
to support the jury’s verdict that the defendant provided “substantial assistance in
the commission of the felony.” Tenn. Code Ann. § 39-11-403 (emphasis added).
This conclusion contradicts the defendant’s assertion that he played a minor role
in the facilitation.
In summary, we conclude that the trial court properly applied
enhancement factor (1) and properly rejected the mitigating factors proposed by
the defendant. We cannot, however, affirm the trial court’s further enhancing the
defendant’s sentence on the bases of considerations not included among the
factors provided by Tennessee Code Annotated § 40-35-114. Because the trial
court did not indicate the weight it accorded each enhancement, we undertake
that effort. Unlike the issue of applicability of the enhancement, here the extent
and nature of the defendant’s criminal history are relevant. Although lengthy, the
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defendant’s criminal history is relatively minor. We conclude that this history
warrants a one-year enhancement. Therefore, we modify the defendant’s
sentence to four years.
Alternative Sentencing
The defendant next argues that the trial court erred in denying an
alternative sentence. Because he is convicted of a Class C felony, the appellant
is presumed eligible for alternative sentencing. See Tenn. Code Ann. § 40-35-
102. Nevertheless, the trial court found that confinement was necessary to avoid
depreciating the seriousness of the defendant’s offense and to provide a
deterrence to others likely to commit similar offenses. See Tenn. Code Ann. §
40-35-103(1)(B). The defendant attacks these findings, arguing that neither is
supported by the record.
The need for deterrence cannot be conclusory only, but must be
supported by evidence in record indicating that the sentence imposed would
have a deterrent effect within the jurisdiction. See Ashby, 823 S.W.2d at 170;
State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995). In the present
case, the trial court noted, sua sponte, “We have a terrible problem of crack
cocaine here in Greene County.” This finding, however, is not supported by any
evidence in the record. Even without such evidence, the state argues that drug
offenses are “deterrable per se.” Although other panels of this Court have held
precisely that, see, e.g., Dykes, 803 S.W.2d at 260, such holdings cannot be
reconciled with our Supreme Court’s holding in Ashby; which, we note, was itself
a drug case. Therefore, because the record contains no supporting evidence,
we conclude that confinement is not warranted in this case on the basis of a
need for deterrence.3
3
W e note tha t the legislature has ex pressly fou nd deter rence n ecess ary with rega rd to
certain drug offenses com mitted within 1000 feet of a school: “The enha nced and m andatory
minimum sentence required by this section for drug offenses occurring in a Drug-Free School
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Nevertheless, we affirm the trial court’s finding that confinement is
necessary to avoid depreciating the seriousness of the defendant’s offense. For
this factor to warrant a sentence of confinement, “‘the circumstances of the
offense as committed must be especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree,’
and the nature of the offense must outweigh all factors favoring a sentence other
than confinement.” Bingham, 910 S.W.2d at 455 (quoting State v. Hartley, 818
S.W.2d 370, 374-75 (Tenn. Crim. App. 1991)).
The circumstances of the defendant’s offense are, for the most part,
unremarkable. However, as noted above, the evidence showed that the
defendant committed his offense within 200 yards of a school. With its passage
of the Drug-Free School Zone Act, the Tennessee legislature emphatically
expressed the seriousness of this circumstance in drug-related offenses. Our
review of that Act persuades us that the legislature considered drug offenses
committed within a school zone to be especially reprehensible and offensive.
We agree with the trial court that confinement is warranted.
FINE
Finally, although not raised by the parties, we note that the defendant’s
fine exceeds the statutory limit. The jury imposed, and the trial court approved,
a fine of $50,000. The maximum allowable fine for a Class C felony is $10,000.
See Tenn. Code Ann. § 40-35-111(b)(3). Article VI, Section 14 of the
Tennessee Constitution provides that every citizen has the right to have a jury of
his peers assess any fine in excess of fifty dollars. Accordingly, this Court may
not reduce the defendant's fine to correct this error. See State v. Martin, 940
Zone a re nece ssary to se rve as a d eterrent to such u nacce ptable co nduct.” T enn. Co de Ann . §
39-17-432(a). Although this legislative expression would arguably support a conclusion that
dete rren ce is n ece ssa ry in the pres ent c ase , given our re solu tion b elow we ne ed no t deve lop th is
analysis.
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S.W.2d at 567, 570-71 (Tenn. 1997). However, it is permissible to remand the
case for a determination on the issue of the fine alone, so that the defendant
may have a jury assess a fine within the statutory limits. See id. It is not
constitutionally required that "the same jury fix the fine that finds the defendant
guilty." Id. at 570. Therefore, we remand this case to the trial court where a new
jury shall be empaneled to fix an appropriate fine.
CONCLUSION
For the forgoing reasons, the defendant’s conviction is AFFIRMED; his
sentence is MODIFIED to four years in the Tennessee Department of Correction,
and this case is REMANDED for a jury to fix the amount of the defendant’s fine.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
____________________________
JOHN H. PEAY, Judge
_____________________________
DAVID G. HAYES, Judge
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